I can't tell if this is kind of brutal or if I just haven't listened to an oral argument in a while? Definitely not as brutal as the 9th
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If they go as hard against him as they did with Wall, he might have some trouble
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Interestingly in the Hawaii hearing, the judge seemed sympathetic to govt position on standing, but said he was bound by 9th cir on standing
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Because this is 4th Cir en banc, and it's a very diff case (the state is not a plaintiff), the standing issue is dangerous to plaintiffs
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Standing seems to be a really common thread across major nat sec lawsuits, imo that just means law around standing is broken ¯\_(ツ)_/¯
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Judge asks if the order is facially legitimate, counsel stammers a little and says "I don't think so your honor..." he's just not very good
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Maybe just a case of the nerves but sigh
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Wall was so eloquent and confident with an extreeeeeeeemely bad case, and this guy can't find his confidence with a case he won below
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Judges are demanding that he explain what's wrong on the *face* of the order and he just can't convincingly talk around it
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He was almost certainly mooted on this question and what is happening
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Sorry, his performance isn't super relevant to this case, it's just very frustrating to hear this contrast
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Judge: "You just don't want to answer the question" Oof, you never want to hear that
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Judge getting extremely frustrated with him. Asking if Lemon is applicable and he JUST DOESN'T RESPOND and has to be asked again.
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He says Lemon as explained by McCreary.
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Now questioned on cases that say that First Amendment doesn't apply to foreign nationals outside US borders
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THIS IS SO FRUSTRATING TO LISTEN TO
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This is almost as bad as Flentje's performance and he doesn't even have the excuse of only having prepped a few hours before
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He's being handed so many softballs and the judges are asking him obvious ones and I want to die
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Judge Shedd: "Your argument is that he is tainted by animus, is that correct?"
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Judge Shedd asks if the animus follows all the way through to AG and secretary of DHS, and why their giving reasons doesn't override taint
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An interesting question, that the lawyer cannot navigate
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Lol lawyer brings up the statement about the Muslim ban on the website. "He hasn't removed the statement on the website"
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Judge: "Still there today?" Lawyer: "Last I checked, yes"
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Judge Niemeyer asks if they're going to look for statements from 20 years ago
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another judge interrupts to say they're only looking for relevant and probative statements, seemingly intervening out of pity
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Oh my god has he not run out his clock yet? I am squirming so hard with discomfort rn
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