This Is What Is Wrong With The American Judiciary

State of Washington v. Donald J. Trump, No. 17-35105, 2017 WL 992527, --- F.3d ---- (9th Cir. Mar. 15, 2017) (Bybee, J., dissenting from the denial of reconsideration en banc, and joined by Kozinski, Callahan, Bea, and Ikuta, JJ.):

Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

Id. (emphasis added).

I do not romanticize the role of the judge or the virtue of judges in general, and I do not think others should do so either.* The job of judge carries duties and difficulties. But many of these difficulties inhere in the judge’s role, and if a judge is not up to the task, then he should not take on that role and then complain.

For example, judges, like anyone else in any other role, want a reasonable amount of time to meet their responsibilities. So a compressed briefing and argument schedule is onerous. But all temporary restraining orders are onerous in just this way. That being so, it is difficult to credit why this all too common fact of judicial life is among the “worst conditions imaginable.” Judge Bybee’s overstatement here is palpable.

Even more problematic, Judge Bybee states that “intense public scrutiny” is another of these “worst conditions imaginable.” That is a problem. 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.

Moreover, it is wholly “out of ... bounds” for an American judge to instruct litigants that their out-of-court statements are inconsistent with “effective advocacy.” Even if not specifically intended, the natural, probable, and expected effect of the dissent’s language is to chill constitutionally protected speech.** It amounts to a directive, from the court*** to the lawyers before it, to instruct their clients to shut up during ongoing litigation. Judge Bybee’s extraordinary language here demands a response from the public, the wider legal community, and the elected arms of the government.

Article III judges are protected by lifetime tenure in office and salary which cannot be reduced by Congress.**** They are not supposed to be insulated from “intense public scrutiny.” Nor should judges instruct litigants before them to limit their constitutionally protected out-of-court speech, and to encourage such limitations under the threat of what is or is not “effective advocacy.” That Judge Bybee, along with Judges Kozinski, Callahan, Bea, and Ikuta, who joined Bybee’s dissent, think otherwise is more than a problem: it is an American disaster.

Seth

PS: Welcome Instapundit, Chicago Boyz, and Josh Blackman's Blog readers.

PPS: For an entirely different point of view, see Jonathan H. Adler, The most important part of Judge Bybee’s dissent from denial of en banc review in Washington v. Trump, The Washington Post—Volokh Conspiracy (Mar. 17, 2017), http://tinyurl.com/mu6pkpf. 

* But see Seth Barrett Tillman, Judge Boggs, The New Reform Club (Sept. 7, 2016, 2:11 PM). [here]

** To put it another way, one might ask if the dissent’s language here would deter a reasonable person (i.e., a litigant) of ordinary firmness and fortitude from expressing constitutionally protected speech. Or, one might ask if an administrative law judge or an administrative appellate body had issued such a view in an opinion, what our Article III courts might have done with such language on appeal? 

*** Or, more accurately, from 5 federal appellate judges. 

**** Article III judges have additional supports. Generally, they are supported: (1) by lay juries (who are virtually unpaid); (2) by Article I judges (including Magistrate Judges and Bankruptcy Judges); (3) by special masters, arbitrators, and mediators; (4) by generous allowances for personal staff (including up to 4 law clerks per judge); (5) by other courthouse staff (including, e.g., probation officers, stenographers, and librarians); (6) by the Administrative Office of the United States Courts, the Federal Judicial Center, and the United States Sentencing Commission; and (7) by excellent electronic and physical facilities, including separate entrances and private bathrooms for the judges. All of which are secured by the regular presence of United States marshals and other security staff. Few state court systems can support their judges in the grand manner federal judges have come to expect. The all too frequent complaints of our federal judiciary have a strange unreality about them. One day the taxpayers may notice. See generally Seth Barrett Tillman, Courthouse Security Checks, The New Reform Club (Aug. 7, 2016, 7:33 AM). [here]

Citation: Seth Barrett Tillman, This Is What Is Wrong With The American Judiciary, The New Reform Club (Mar. 16, 2017, 4:23 AM), http://tinyurl.com/z4q9f8v