The schizophrenic dissent of the 9th Circuit re Trump's executive order - continuing to call for public respect of judges' dishonorable actions will only breed more public contempt of the judiciary

On March 6, 2017 President Trump issued his new Executive Order on immigration.

At that point, a lawsuit against his first executive order filed by the State of Hawaii on February 3, 2017 was pending in federal court.

On March 7, 2017 President Trump's administration has filed in the U.S Court of Appeals for the 9th Circuit a motion to withdraw its interlocutory (from an intermediate decision) appeal of the temporary restraining order imposed by federal district judge Robart, on consent with Appellants.

On the same day, March 7, 2017, the State of Hawaii filed a motion to amend their complaint to now challenge President Trump's 2nd Executive Order - see docket of that case, Docket No. 58.

On March 8, 2017 the unopposed motion on consent of opponents, to withdraw President Trump's interlocutory appeal was granted, and the case was closed, as reflected on Pacer.gov.

On the same date, March 8, 2017, federal district court granted the motion to amend, making the State of Hawaii "the first state challenging President Trump's 2nd Executive order in court".  See docket of the case, docket No. 59.

By the way, consider the waste of public funds on that case, where in just a month an a half since the case was first filed on February 3, 2017, 222 docket entries were made in a federal district court case, more than an average federal court case would generate in several years.

On the same date, March 8, 2017, the State of Hawaii filed a motion for a temporary restraining order of the new executive order of President Trump, and the judge, Derrick Watson, scheduled a hearing on that motion for March 15, 2017, one day before the new executive order would come into effect.

After that, interesting things started to happen in the 9th Circuit where the appellate case was dismissed, jurisdiction of the court stopped, and all prior decisions on the dismissed appeal were rendered moot and void by the dismissal on March 8, 2017.

On March 15, 2017 the 9th Circuit denied an en banc application in the already dismissed appeal.

Of course, that application died a week prior because of the dismissal of the appeal, but lack of jurisdiction never stopped a judge willing to get some limelight for themselves, and especially a judge of the 9th Circuit.

On the same date, March 15, 2017 - I am not sure which was first and which was second, because the 9th Circuit decision to deny review of the already mooted decision in the dismissed appeal does not have a time-stamp - Judge Derrick Watson of the U.S. District Court for the District of Hawaii, a judge who accepts externships from the Hawaii State University School of Law (and, there is a question whether Hawaii State law students worked on his 46-page order in favor of their school) granted a temporary restraining order to the State of Hawaii.

So, it appears that not only the 9th Circuit revived jurisdiction in an already dead case in order to make the mooted, and dead, 3-judge decision of the 9th Circuit, appear alive and "precedential", but that it did it to pitch some support for the lower court judge who, same as the 9th Circuit, has connections to the Hawaii University Law School, a party in the lawsuit.

Judge Derrick Watson in the district court, of course, relied upon the decision of the 9th Circuit which, on the date of Judge Watson's decision (March 15, 2017) was void for a week - since the appeal in which it was made as an intermediate matter, was dismissed on consent of court on March 8, 2017.

The international law firm Hogan Lovells (with headquarters in London, Great Britain, reportedly, an 11th largest law firm in the world by revenues as of 2013) that represents the state of Hawaii in that case, at taxpayers expense, and that have drummed up that humongous docket of 222 entries within 1.5 months, is already drumming up business by advertising their "success" in blocking President Trump's travel ban on their website:

At the very same time the State of Hawaii stalls my Freedom of Information request by making it prohibitively expensive to get information as to who paid and how much was paid for vacationing, wining and dining of U.S. Supreme Court justices invited by that law school, including the bills of the U.S. Supreme Court Justice Ruth Ginsburg who vacationed in Hawaii, at the State of Hawaii's expense, during the pendency of the lawsuit in the Hawaii district court and right when the 9th Circuit has made its now-mooted (but, as 9th Circuit pretends, still alive) decision.  Ruth Ginsburg, as I said before, was vacationing within 7 miles of the chambers of one of the 9th Circuit judges who has made a decision, and had meetings with Hawaii State University Law School faculty, while three of Judge Clifton's law clerks:

• Joshua Korr;
• Aaron Henson; and
• Wayne Wagner

are currently part of that faculty, being professors at the Hawaii State University School of Law.  Nothing too crooked.

Here is the FOIA request that the Hawaii State University School of Law acknowledged, listing request for records about employment of Judge Clifton (the 9th Circuit judge whose chambers are located within 7 miles from the law school where Ruth Ginsburg visited at the time Judge Clifton was making his decision regarding President Trump's TRO and who himself enthusiastically participates in the law school's activities):

By the way, Joshua Korr, law clerk to Judge Clifton in the U.S. Court of Appeals for the 9th (federal) circuit (see his picture and information about him on the University of Hawaii School of Law as of today, which is a public record):

is listed as a law clerk for a state judge of the State of Hawaii in 2016, yet another "interesting" coincidence, further potentially miring the decision of Judge Clifton in conflicts of interest:

Here is the slideshow as to how well Ruth Ginsburg was entertained during her self-given vacation during work time in February of this year while she was likely help draft orders for the 9th Circuit, and for the Hawaii Federal district court, as well as when she was likely consulting the State of Hawaii how to fight President Trump (who she openly hates, and keeps making public statements against him, disregarding the fact that his case may come to her for review).

Watch how frail Ginsburg is - she literally cannot stand very well on her own.  How can she be allowed to handle a rigorous caseload of the U.S. Supreme Court, including death penalty cases? 

Note that Ruth Ginsburg is called here the State of Hawaii University School of Law's "Jurist in Residence" - and even that designation did not deter her from coming, at the time when the State of Hawaii is a party in a federal court litigation potentially heading towards the U.S. Supreme Court.

Here is the bill estimate, with a demand to pay 50% down, that I received from the State of Hawaii University Law School several days ago.  This information, public records of great public concern, showing whether judges of the U.S. Supreme Court, and of the 9th Circuit, are, very simply, bought by free vacations in Hawaii, should be published and available to the public for free, not hidden by allegedly high cost of research and retrieval.

185 hours to retrieve all records of who paid for judges wining and dining?  And, 45 more hours for "review and segregation"? Are those records so well hidden that it requires over 23 full working days (8 hours a day) of search?  Or are they so plentiful, which raises even more concerns, because the U.S. Supreme Court will, most likely, have to review a writ of certiorari from this case in the long run.

And, "another person" should be consulted about possible exemptions - who are those "other persons", I wonder - Ruth Ginsburg herself and other judges who were wined and dined and vacations for free in Hawaii?  Or their private sponsors who pitched in to defray some of the costs of providing freebies to the greedy millionaire judges who would not turn a freebie down even if that screams disqualifying conflict of interest?

So, here is the bill estimate and a bill for 50% of costs for public records as to who paid and how much was paid for wining and dining U.S. Supreme Court justices by the Hawaii University School of Law, a party in the action where a temporary restraining order upon President Trump's second executive order on immigration was imposed by a judge who has interns from Hawaii State University School of Law:

With that background in mind, let's look at the 5-judge dissent that the 9th Circuit considered possible to file (as well as a "majority" and a "concurring" opinion), and to file on March 15, 2017, a week after the appeal was dismissed by order of the same court - and thus jurisdiction in that appeal, FOR ALL PURPOSES, died as of that same date, making all orders in that appeal moot and void.

Here are the concurring and dissenting opinions regarding the belated denial of en banc review of the mooted 9th Circuit decision, I downloaded them directly from Pacer.gov.

On the one hand, the dissenting judges use pretty strong language to describe what the 9th Circuit 3-judge panel did when they refused to grant to President Trump a temporary stay of Judge Robart's unlawful decision (see analysis of judge Robart's decision here and of the 9th Circuit's decision here).

The 5 dissenting judges:

• Jay Bybee;

• Alex Kozinski;

• Consuelo Maria Callahan,

• Carlos Bea, and

• Sandra Segal Ikuta

branded the 9th Circuit decision as having made errors that "so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future".

That is pretty strong language.

It practically say that the 9th Circuit panel:

1) did not follow or apply the law;

2) created confusion and chaos in the law

where respect to judicial decisions heavily relies upon predictable and correct application of the law that is GIVEN to judges, not CREATED by them.

The dissenters confirmed their opinion that the 9th Circuit violated the constitutional separation of powers and wreaked havoc in federal case law:

Then, the dissenting opinion states, in exhaustive analysis, that only the President gets to decide issues of immigration policy, and that it is subject only to review whether there can be found any bona fide basis for the decision of the executive.

In that, the dissenting opinion did not even touch upon the question that aliens outside of the U.S. are not entitled to any constitutional rights, by the U.S. Supreme Court precedent, and thus, states, "standing in their shoes", do not have any standing to sue on their behalf either, as well as on their own behalf.

Moreover, the dissenters confirmed that courts should not, even in camera, review issues of national security that the President is debriefed on, and pointed out that it is wrong to expect the President to reveal his considerations for issuing the executive order because that would reveal contents of secret security briefings:

In fact, the dissenters not so subtly accused the 9th Circuit panel of trying to second-guess the results of presidential elections that vested President Trump with the discretion to decide issues of immigration policy, without second-guessing by courts:

Yet, after saying all those right words, the 5 dissenters then said something extraordinarily stupid - under the circumstances.

Look what these 5 dissenting judges are saying, in the same breath:

1) that the judges of the panel did not follow the law at all, creating confusion in courts as to what IS the law

which necessarily leads us to conclusion that these 5 judges, as well as those 3 judges they are criticizing, harbor a dangerous delusion that judges in the United States, and not the U.S. Constitution and written laws enacted by legislatures, as people's representatives, are sources of law, and

2) that when judges do not follow even their own "law" that they created - without authority - they still need to be respected and not criticized?

Considering any out of court criticism, any statements about court decisions which are less than deferential to judges, to be regarded as unacceptable "ad hominem" , personal attacks on judges?

I think we are beyond that hurdle already when even such a stronghold of deference to the judiciary, New York Law Journal, has published an article, specifically on Donald Trump's criticism of judges, fully supporting his criticism:

"If the judiciary is to maintain our respect and our deference, judges across the country must show that their decisions are just not politics by another name.  Otherwise, jurists can expect even sharper criticism than Trump's."

When judges, public servants, violate their own oath of office by not following the law and ruling based on their own political views - which is what obviously happened in the 9th Circuit decision - they are not entitled to respect of their employer, the public, no matter what honorary titles and names they bestow upon himself.

They can view themselves as honorable and distinguished, and they are still unruly and contemptible oath-breakers in the public eye if they MAKE the law instead of APPLYING the law in the decisions.

The dissent ended with interesting phrases:

But that's EXACTLY what courts are doing nowadays - setting policy instead of legislators and executives, instead of doing their duty and only APPLYING the law as written.

And, the dissent actually recognizes that what the 3-judge panel decided was not the law.

So, the dissenters must realize that the we have long passed the line where "we are not governed by law at all" - and that courts are the reason why that happened.

Yet, by placing respect to judges, even openly lawless judges, above all else, the dissenters showed that they are still very much members of a brotherhood that have long circled their wagons against their employer, the public, and that considers their own interests above all others, first and foremost.

To any reasonable person, calling for MORE respect to people who are engaged in actions that deserve NO respect, and actually DISCIPLINE for oath-breaking and of promises to follow the law and precedents made at each of the 3 judges' confirmation hearings in Congress - will not bring more respect to anybody.

It will bring less respect even to the dissenting judges themselves, and to the judiciary as a whole, because such feverish efforts to protect the judiciary from fair criticism - which does NOT have to be deferential, especially when judges openly refuse to follow the law and their own oath of office - and will bring further contempt to the judiciary as a whole.

When they act as politicians in black robes, they must be criticized for that behavior.

And criticized more, not less.

Because, as the dissent makes very obvious, there is just one thing that judges appointed for a lifetime fear - exposure of misconduct through harsh criticism.

And you know what comes when the public thinks lowly of the lawfulness of court decisions - because they are unlawful?

The public will start disregarding those decisions.

It is a matter of time when massive civil disobedience of unlawful court orders will start, and when that starts, the judiciary should look in the mirror to find the reason why that will start happening.

For example, the law may not possibly require President Trump, who has been sworn to uphold the U.S. Constitution, to follow an unconstitutional order of the 9th Circuit which even the fellow judges recognize is unconstitutional - not in so many words, but quite transparent (by saying that the decision will "confound" the U.S. Supreme Court and other courts as to "what the law is").

In fact, President Trump's oath of office requires to follow only his constitutionally vested duties, and to disregard any unconstitutional interference into his duties.

So, President Trump will be in the right if he would simply disregard orders of various federal courts acting as if presidential elections are still ongoing and as if judges are his political opponents in those elections.

President Trump already made a step towards that, by saying that, if his "honed down" executive order is also not good enough, he may just as well go back to his original order, which was perfectly good in the first place.

And let the dice roll.