I believe with great certainty that my former law professor William Beaney (1918-2003) would be appalled at the two Federal judges who have issued restraining orders against President Trump’s travel orders. He’d be equally dismayed by the 3-judge panel from the 9th Circuit that upheld the first Judge and also by the judges on the 9th Circuit that just refused an en banc rehearing of the first judge’s restraint of Trump’s first executive order (the 2nd one has not been appealed yet).
I was in two of Professor’s Beaney’s classes at the Universtity of Denver in 1975. The first was called Decision Process and the second was Constitutional Criminal Procedure. The first was about who makes legal decisions, how they are supposed to make decisions, and how the rest of us can find them, read them, understand them, and apply them in the practice of law. Criminal Procedure is a much deeper subject and a lot more demanding.
There are, however, a few key principles that are common to both and can be easily learned and remembered. Understanding these underlying principles is key to understanding all the rest.
The first principle is the difference between public policies on the one hand, and legal and judicial principles on the other. Judges pretty much own the ground on legal principles. It is on these principles that judges decide cases and controversies (C&C). That’s right in the U.S. Constitution. The C&C limit is supposed to keep judges from intruding on public policy because those are decisions given by the Constitution to the Executive and Legislative branches. These are the elected brances of government, often called the political branches.
Just as the U.S. House of Representatives has no authority to hear and decide divorce cases, breach of contract lawsuits, or any other sort of legal dispute, the Judicial branches have no authority to make public policy or to intrude on the political branches’ exclusive powers in that area.
Professor Beaney made it easy to understand all this. Judges do not have authority to decide political questions. Those issues are reserved for the political branches staffed by men and women duly elected by the people. Political questions cannot be answered by courts of law because they do not present a justiciable issue that a judge can decide.
All this simply recognizes that America was founded as a representative republic where the people are self governing in the sense that they elect politicians to represent them in the public policy making process.
Too many judges never learned these things or simply don’t like these principles and do not want to follow them. These are things our forefathers fought and died to achieve. Judges take an oath to serve and defend the U.S. Constitution and the principles it demands before they are sworn in as judges. When they willingly ignore the fundamental ground rules others have struggled to bestow upon us, they breach their oath.
Judges who yearn to be in politics have options available. They can resign from the bench and run for political office.
A judge of the 9th Circuit asked for an en banc hearing (de novo hearing before all the judges) of the 9th Circuit order upholding the Judge in Washington State on Trump’s first executive order. An en banc hearing was denied. That decision is available for you to read here.
Five other judges on the 9th Circuit dissented from the court refusal to hold an en banc hearing. That dissent (scroll down to the second page of the order to find the dissent) explains correctly and succinctly how the judge in Washington State and the 3-judge panel of the 9th Circuit got everything wrong by ignoring settled Constitutional law and instead making a decision based solely on their personal, leftist political ideology.
If reading judicial opinions is not your thing, go to this story at Breitbart where much of Judge Bybee’s dissent is quoted.
If you read the opinion you’ll see Judge Bybee also expressed outrage at those who critiized the judges for exceeding their authority in rendering a political screed under the guise of a judicial ruling. Bybee is wrong on this. If judges don’t want to be held up to intense public scrutiny they have a ready remedy. They can stop acting so recklessly. They can start acting like judges. These are not rulings upon which reasonable people can disagree. These rulings are the product of unprincipled rogues.
See also, Seth Barrett Tillman: Judges have extraordinary public power. They are supposed to be scrutinized, and that includes scrutiny by the wider public. The only legitimate question is whether the scrutiny is fair, not how “intense” it is. The First Amendment does not end at the courthouse door, nor do parties’ First Amendment rights end because they find themselves dragooned into litigation.