One of the many strange details of the recent rulings on the Trump immigration EO was this:
[Judge James Robart] asked a Justice Department lawyer how many arrests of foreign nationals from the countries have occurred since 9/11. When the lawyer said she didn’t know, Robart answered his own question: “Let me tell, you, the answer to that is none, as best I can tell. You’re here arguing on behalf of someone that says we have to protect the United States from these individuals coming from these countries and there’s no support for that.”
But “as best I can tell” wasn’t good enough. Not good enough on the part of the judge, who should not be relying on his own ignorance in making a ruling, particularly when the facts were not the least bit difficult to come by and conflicted with his statement. And not good enough on the part of the government lawyer, whose ignorance might be considered even more shocking because the lawyer is charged with learning things that might be needed in a trial or hearing. Wouldn’t the lawyer be the person who should have realized it was her duty to have the facts on hand to provide the “support for that,” if questioned?
In the case of the Trump EO, however, the 9th Circuit (which is the federal appeals court to which the case went after Judge Robart ruled on it) had this to say on the matter of terrorists from the 7 countries:
The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.
Let me try to translate that as best I can. The judges need to take into consideration evidence presented by counsel, not things they read in the newspaper. Evidence is readily available as to the danger the 7 countries represent—the widespread terrorism and terrorist-training there, the fact that they are failed states and vetting people from them is very difficult, the number of arrests of people from those countries who were plotting terrorism or acts related to it (as well as some terrorists from those countries who committed such acts but were shot and killed and therefore never arrested), the number of terrorists in Western European countries who were from the seven countries, and the number of people who had traveled to those countries recently for terrorist training and then committed or plotted such acts. But if such easily-obtainable evidence is not presented to the courts, it is as though it does not exist for the purposes of the courts. In addition, because the government’s position is that the court had no right to question the decision of the executive branch on this matter anyway (“the Government has taken the position that we must not review its decision at all”), any such evidence need not be taken into account.
What’s the remedy for the willful ignoring of the facts? Is there one? Should there be one? After all, we don’t want judges reviewing the pros and cons of each and every executive decision about immigration and security and whether the decision was justified, do we? That’s not a judicial function.