They say 135,000 people listened to the Ninth Circuit’s podcast of the telephone argument in Washington v. Trump. The LA Times offers a headline:
U.S. 9th Circuit judges appear to agree that states have standing to challenge travel ban
That’s not the way courts work, of course, but what does the LA Times care? One will know what the panel holds when it issues its decision, and even then, the court may not issue any more than a cursory granted or denied. Having listened to the argument, it’s not that the Times is wrong, but that it’s wrong to leap to conclusions about what a court will ultimately do. Every lawyer knows better than to leap to assumptions. Every lawyer who has ever argued a cause knows the crush when it went brilliantly, and then they lost.
To some, the interest in the argument, a piddly telephone argument about a TRO of all things, showed that people do care about the law. It’s hardly as clear as that. They cared about the travel ban, and only what the law could do to serve their certainty that Trump was wrong. Then again, it has a 55% approval rating according to Business Insider.
Mind you, this wasn’t like oral argument in the usual case. Being on a telephone impairs the ordinary ebb and flow of words. The inability to see non-verbal cues changes the dynamics. And there were a few weird things that happened, like Judge Friedland bailing out the Washington State attorney when he got caught on having no new facts worthy of additional consideration, or the smack handed DoJ lawyer August Flentje for not being prepared to handle a hypothetical that was popularly interesting but legally irrelevant and way off topic.
But because the argument went so well for the State of Washington (and, from all appearances, it did) and poorly for the government, the courts are suddenly our saviors.
The most reassuring sound in these rancorous early days of the Trump administration was the legal debate, at times arcane, over the president’s travel ban during live-streamed oral arguments in a federal appeals court on Tuesday.
No gratuitous insults, no personal threats or childish tantrum — only judges and lawyers debating complex legal issues with respect and restraint. It was the sound of grown-ups taking responsibility for governing the country, and for people’s lives.
Oh, lord no. The role of the court is not to “tak[e] responsibility for governing the country.” Did the Times’ editorial board miss third grade civics too?
We have a tri-partite government, with a legislative branch to enact laws, an executive branch to implement the laws enacted by the legislative branch, and a judicial branch, the “least dangerous branch,” to resolve disputes and, because of Marbury v. Madison, determine the constitutionality of the actions of the other two branches. The courts have no role to play in governing the people.
That the oral argument reflected “respect and restraint” is a matter of how law is done, not to grandstand or politicize, not to play to the voters, not to convince the groundlings who aren’t all that concerned with logic and reasoning, but that they get the outcome they so desperately desire. Elected politicians play those games. Judges do not, or at least, should not.
It’s completely understandable why neither congressfolk nor presidents behave the way judges do. They serve entirely different governmental purposes. It’s not to suggest they are right to behave ignorantly, boorishly or childishly, but that they appeal to their constituents in whatever way they deem effective.
Lawyers, on the other hand, don’t need to win in the court of public opinion. They need to win in the court of law, or in this case, the Ninth Circuit. As much as it may bring a warm glow to the many thousands of people listening in on a telephone call that they misperceive as being what appellate lawyers regularly do, they can just as easily take away the wrong lesson as the right one. Indeed, they’re more inclined to the former, since this argument makes it seem that courts are the most wonderfulest things ever because the judges appeared to do what the public hoped they would do.
When courts rule in ways that doesn’t turn those frowns upside down, people will rush right back to hating the courts, calling judges names, screaming about how politicized and horrible the judges are. Whether your most hated case is Citizens United or Roe v. Wade, the hatred will return when the court, respectful and restrained as oral argument may be, doesn’t reach the result you’re so certain it should.
Has this proven that the judicial system will save us? Has this calmed our frazzled nerves that there is at least one branch of government that hasn’t gone bonkers? For the moment, yes. But nothing has really been learned.
For stretches of the hourlong argument, the judges and lawyers waded deep into the case’s various procedural technicalities — not material that would usually appeal to a wide audience. But that is the majestic routine of the law: applying well-established precedents and principles to decide cases in the present and provide some assurance of predictability for the future. It may not carry the adrenaline hit of a tweet, but it has kept the country relatively stable and peaceful for most of its history.
That majestic routine can carry a huge adrenaline hit when you’re a lawyer, when you’re fighting for your client, arguing your cause. But that’s how it feels to lawyers. It’s only majestic to most people, the Times editors included, when they think it’s going to achieve their end. Otherwise, it’s at best a bore and at worst a travesty of the law. Lawyers know this because this is what we do, win or lose.
Old lawyers never die. They just lose their “appeal” [to the 9th Circuit]. Terrible profession, a really terrible profession. Terrible people, they are. I would fire all of them if I could.
He’s clearly upset: no use of the royal “we” today.
‘But that’s how it feels to lawyers.’
Well, I’m glad to learn something gives you the feelz. The way you bandy the notion of experiencing the world in any manner beyond cold, hard logic as a weakness had me believing you were an automaton.
There are things that should be felt and there are things that should be thought. The ability to distinguish between the two is where you’ve gone astray.
Yep. They weren’t interested in the majesty of the law, they wanted to see the bad guy get a beatdown (or, almost as good, have something to be freshly outraged about.) Somebody on the Twitters (IIRC, a lawyer, but not sure) said something like, “I think this shows the courts will treat the powers President Trump should have differently from the powers the presidency should have.”
My reaction was that I sure hoped not, because that was probably the one thing that could put me squarely in his corner.
I keep finding myself amazed by the fact that no matter how idiotic one side is, the other has to match it.
Just when there’s something truly idiot proof, you find there is always a better idiot.
This must be what gives us all such a cheery disposition.
I see what you did there: “They need to win in the court of law, or in this case, the Ninth Circuit.”