Today, the Ninth Circuit declined to consider en banc (by a full court) whether to vacate the published order blocking President Trump’s first executive order restricting travel from seven Muslin-majority countires. Since the Ninth Circuit issued its decision last month, President Trump issued a new executive order that supposedly corrects the old order’s problems.* The new order even removes Iraq from the list of countries whose nationals are not allowed entry into the United States. Thus, the case heard by the Ninth Circuit is moot.

Judge Jay Bybee authored a dissent from rehearing en banc to consider vacating the panel’s decision. In the opinion joined by four other judges, Judge Bybee thoroughly argued that the panel got the decision wrong. Quickly reading through the opinion, I still think that the panel got the decision right. President Trump’s executive order likely violated the Due Process Clause because it threw the legal status of green card holders from the seven Muslim-majority countries into flux without any process. Indeed, this is confirmed by the panic at airports across the country show that the order was facially problematic.

Although I (initially) disagree with Judge Bybee, I everyone to read the closing part of his dissent:

[] I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.

I hope more people take this passage to heart.

*This evening, a federal judge in Hawaii blocked the enforcement of President Trump’s new executive order. It looks like the Ninth Circuit can’t escape this issue.