Jerome Woehrle at Liberty Unyielding provides a revealing look at James Robart, the federal judge who enjoined President Trump’s executive order temporarily restricting entry to the U.S. from seven highly problematic nations. Scott has observed that Judge Robart’s opinion is nearly devoid of legal analysis. Woehrle expands on this criticism:
Judge James Robart’s order has no legal basis, and barely pretends to. [The] order against Trump sheds little light on his thinking.
But at an earlier hearing on Washington State’s motion for a temporary restraining order, he asked what rational basis the government had for restricting entry from the seven violence-wracked countries covered by Trump’s order: Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen.
As NPR notes, these seven countries were previously singled out by Congress for milder restrictions on visas. Congress did so after terrorist attacks in Paris and San Bernardino, in a 2015 law tightening up the Visa Waiver Program that was signed by President Obama.
Critics argue that there was no rational basis for restricting travel from these countries but not other countries in the Middle East, such as Saudi Arabia. This argument is silly, since America has deep economic links and security ties with Saudi Arabia that it lacks with the seven countries subject to the 2015 law and Trump’s executive order. America need not antagonize a key ally when it takes steps to increase border security.
Perhaps for this reason, Judge Robart’s order in State of Washington v. Trump does not even make this argument, simply suggesting that for some unexplained reason the executive order may violate the “Constitution.”
The seven countries at issue are: Iraq, Syria, Libya, Somalia, Sudan, Yemen, and Iran. The first six are all failed, chaotic states that have produced terrorists. The problems with effectively vetting people from these countries are obvious.
The seventh country is Iran. It exports terrorism. Though not a failed state, our relations with the mullahs are such that effective vetting may be well nigh impossible.
Saudi Arabia is neither a failed state nor a nation with which we have essentially no relations. Same with Pakistan. We can expect, or at least plausibly hope for, meaningful assistance from the government in vetting potential entrants to the U.S.
I’m not saying that this provides the assurance we need, but it does provide a higher level of assurance than we have with the seven nations on the list. Or so it rationally can be argued.
Thus, even apart from what Congress did in the 2015 law tightening up the Visa Waiver Program, there is a rational basis for picking the seven countries and not states like Saudi Arabia and Pakistan.
To cover up the embarrassing weakness of Judge Robart’s temporary restraining order, reporters at the Washington Post and elsewhere have trumpeted the fact that Robart was nominally appointed by President George W. Bush. They have done this to suggest that his ruling must have merit, because otherwise he would not have ruled against a President of the same party as the man who appointed him.
But this is misleading, since Robart is a staunchly liberal judge whose appointment was effectively forced on Bush by liberal Senator Patty Murray in 2004, when Washington State had two liberal Senators.
How did this happen? Woehrle explains:
Robart’s appointment as a federal judge was championed by liberal Senators like Patty Murray, who used Senatorial custom allowing senators to veto Presidential appointments of trial judges to obtain the appointment of liberal trial judges like Robart in Washington State. An April 13, 2005 press release by Murray touts Robart’s appointment as the “bipartisan” result of using a state commission to select federal trial judges in Washington, whose appointment Bush then rubberstamped.
This Senatorial veto power, known as the “blue slip,” is an old tradition, dating back to at least 1917, that lets senators have a say on which trial judges are appointed to courts in their home state.
On the bench, Robart has lived up to Patty Murray’s expectations. He has a history of not just liberal rulings, but oddball ones. Woehrle quotes one observer who said this about the judge:
Judge Robart. . .is the same guy who issued [a] bizarre college sexual assault ruling. . .He ruled a falsely-accused male student could not depose or obtain relevant documents from the female student who got him expelled because that would traumatize her (never mind that it was SHE who performed a sex act on him when he was blacked out, meaning that if anyone was guilty of sexual assault it was HER). Reason’s article about it can be found here.
Robart also bellowed “Black Lives Matter” in open court, as the Daily Caller noted (in a context in which it made little sense).
Robart’s ruling on Trump’s executive order doesn’t even attempt to make sense. It is basically ipse dixit.
Unfortunately, the left-wing Ninth Circuit is unlikely to disturb anything Robart does on this matter. And in the Supreme Court, there are probably four votes (minimum) in favor of stopping the Trump order.
Four votes would be enough to affirm the Ninth Circuit right now. That’s why Scott’s immigration lawyer friend was wise to say “Get on with the Gorsuch confirmation. Fast.”