Subject: Re: "blatantly" unconstitutional
Is this a place where word choice becomes very critical?
Don't say, "This order is constitutional."
Instead say, "Our argument is that this order is constitutional." Or maybe, "My client believes the order is constitutional."
Give the subtle hint back to the judge that you are arguing your client's position as your professional duty requires you do to.
A good point.
This also may be an unintended (but expected) consequence of the incoming Administration's approach to secrecy with the initial blitz of EO's. AIUI, they didn't have these EO's vetted by DOJ lawyers as part of the transition (as would normally happen). They didn't want leaks. Instead, they used outside counsel.
That might provide a tactical edge in some cases, since opponents of any given EO may have less time to prepare. But the flip side is that the actual DOJ lawyers who have to defend the EO in court are seeing these things with fresh eyes, too, and only have a few days to get up to speed. You'd expect a request for an immediate temporary restraining order, and normally you'd want to be fully prepared with your best arguments already polished up for that TRO hearing - it's when the judge will form their first impression of your argument.
There's nothing inherently wrong with presenting a really novel argument, and asserting it firmly - but if the judge also thinks you haven't done the preparation that asking for a novel argument requires, they can get testy.