So all of this leads to one of the few truly probing questions given Yates at the hearing. Sen. John Kennedy, R-La., asked, “Did you believe, then, that there were reasonable arguments that could be made in its defense?” In an astonishing response, Yates said no because she decided on her view of Trump’s real intent and not the language of the order. However, many judges disagree with implied motive as the appropriate standard for review, as evidenced by the oral argument this week before the Fourth Circuit. More importantly, at the time of her decision, many experts (including some of us who opposed the order) were detailing how past cases and the statutory language favored the administration. It is ridiculous to suggest that there were no reasonable arguments supporting the order.
Despite this record, Democratic senators heralded Yates as an inspiration. Blumenthal said that he hoped that young people were watching Yates and saying, “That’s the kind of professional I want to be.” It is a curious message to send. According to this same standard, Attorney General Jeff Sessions would also be a hero if he ordered no one at the Justice Department to assist in defending environmental laws as an unconstitutional deprivation of state authority or anti-discrimination laws as a deprivation of religious liberty. There are also judges who might agree with him on those issues and he clearly does not view some of those laws as “wise or just.”
All of this leads to the curious question of why Yates would appear at a hearing to insist that there was no reasonable basis to defend his order.