The Ninth Circuit heard arguments yesterday over whether to stay the nationwide injunction against President Trump's recent immigration ban. Well, the Ninth Circuit and well over 137,000 others, who tuned in to listen to the oral arguments on CNN and the court's YouTube page. When it comes to appellate advocacy, that's Super Bowl-level viewership.
Those arguments were complex and impassioned, with a few occasional stumbles. Alright, some major stumbles. Of course, we're not one to throw stones. That's what Twitter's for. So we rounded up some of the legal twitterverse's best criticism. Here you go.
1. Don't Seek an Emergency Motion, Then Say You Didn't Have Time to Prepare
During oral arguments, DOJ attorney August Flentje faced a skeptical Ninth Circuit panel and still managed to hold his own. But his argument wasn't without some major struggles. When asked if the government had any evidence showing a real threat from immigrants coming from the nations impacted by the immigration ban, there wasn't much in the record Flentje could point to.
So he largely didn't, saying that "these proceedings have been moving very fast," and "we've been doing the best we can." That didn't earn him praise from Judge Michelle Friedland, who noted, "You appealed to us before you continued in the district court to develop the record, so why should we be hearing this now"?
By the way, if I were govt counsel, I'd punch whoever was passing me notes after the argument.-- Supreme Court Places (@SCOTUSPlaces) February 7, 2017
Ugh, govt repeated the "proceedings moving very fast" line. If this is the best they got, they are going to have trouble today.-- Neal Katyal (@neal_katyal) February 7, 2017
2. Beware Smugness. And Zombie Judges.
Washington State's solicitor general, Noah G. Purcell, had a somewhat easier time of it during oral arguments, facing a bit less pushback from the three-judge panel. But some found his opening performance a bit ... overconfident.
On Twitter, Popehat complained that Purcell was "sounding smug," warning him that his smugness could inspire the judges to "eat your [expletive] heart right out of your chest. (We're declining to embed the tweet because of some naughty language that goes against our editorial guidelines. You can read the original here, if you dare.)
3. When the Judge Says Move On, Move On
That wasn't the only Purcell critique circulating through social media. The Washington attorney began his arguments by focusing on a procedural point -- that the federal government was appealing a temporary restraining order, rather than seeking mandamus relief.
Judge Richard Clifton, unhappy with this approach, barked that "You're free to use your time today as you want, but I suggest this might not be the topic that's most important." Purcell continued to address the issue nonetheless.
Raise your hand if you are happy not to have to make a presentation in front of Judge Clifton-- Susan Glasser (@sbg1) February 7, 2017
4. Don't Point Out That You're Blowing It
Full candor with the court is a lawyer's professional responsibility, but there are limits. You don't, for example, need to remind the judges that your argument doesn't seem to be working. But Flentje did just that. When arguing that the executive order was not a Muslim ban, he seemed to scramble. Then he admitted "I'm not sure I'm convincing the court."
Sure, Flentje's comment was a largely inconsequential aside but it made it in to every single paper covering the story.
This argument is a testament to why major legal decisions shouldn't be made based on arguments that lawyers only had 4 days to prepare.-- Ian Millhiser (@imillhiser) February 7, 2017
5. Remember, Those Who Can't, Tweet.
On Twitter, it seems, everyone is an accomplished legal scholar and litigator.
Regular Twitter transforming into Lawyer Twitter. pic.twitter.com/hXPiakWNxL-- Gabe Ortíz (@TUSK81) February 8, 2017
But they're not. So, if all this Monday morning quarterbacking seems a bit overly critical, take it with a grain of salt. After all, any blowhard can throw stones on Twitter.
*listens to this, nods sagely* I understand zero percent of what they are sayinghttps://t.co/hhVC3IK4Lh-- Derek Bolen (@hurrrdurrr) February 7, 2017
Bonus: The President Weighs In
And of course, there's one Twitter loudmouth who was sure to weigh in as well. Here's your president's take, ladies and gentlemen:
If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!-- Donald J. Trump (@realDonaldTrump) February 8, 2017
Big increase in traffic into our country from certain areas, while our people are far more vulnerable, as we wait for what should be EASY D!-- Donald J. Trump (@realDonaldTrump) February 8, 2017
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