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Trump's Attack on TRO Judge Unwarranted, Unwise, and Unfair
Law Professor Who Thinks TRO is Improper on Several Grounds Still Says President Trump's Overreaction in Criticizing The Judge is Wrong
But casting doubt on the legitimacy of his office by calling him a "so-called judge," or exaggerating his objection to the ruling by calling it "ridiculous,"
It is unwarranted because there is nothing whatsoever to suggest that James Robart is somehow not a real judge, that he holds office improperly, or that he was acting outside his judicial role in issuing the order, says Banzhaf. Attacking an order is perfectly proper, but attacking a judge's very legitimacy is clearly improper.
Such attacks are also very unwise, suggests Banzhaf. While judges are supposed to be entirely impartial and dispassionate in their rulings, they are also human. At least some judges may take offense when one of their own is unfairly attacked by a president, and this just might affect their rulings on future cases involving the president, or even the judges of the 9th Circuit who will be reviewing this ruling.
Finally, says Banzhaf, it is very unfair for President Trump to issue a personal attack on a sitting federal judge. As objectionable as his personal attacks on political opponents or activists who oppose him may be, these individuals at least have the option of replying, and replying effectively in a public forum by speaking before a congressional chamber, in a press conference, issuing a statement, etc.
But both judicial ethics and long standing tradition generally prohibit a sitting judge from responding, in a public forum or otherwise, to criticisms of his rulings, and especially to personal attacks.
Attacking someone who cannot fight back is considered unfair and even un-American, says Banzhaf, who has often been personally attacked himself, but is able to fight back.
Banzhaf also suggests that the controversy over Judge Robart's TRO may indicate a more important problem which is likely to continue to occur.
Perhaps, before the judiciary can issue and order which effectively shuts down a major program initiated by the president himself, something more than a brief hearing before one judge should be required, says Banzhaf, noting that in the past a ruling by a three-judge court was required before a law could be declared unconstitutional.
Moreover, he says, in a situation such at this involving an EO with national impact which is being attacked before almost half a dozen different judges, each able to issue orders which may be vague and even contradictory, perhaps there should be a judicial mechanism for coordinating if not consolidating them.
This would limit forum shopping, possibly inconsistent rulings, and minimize other problems.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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