⚖️🧑🏽‍⚖️THE FEDERAL COURTS ARE BROKEN — PRESIDENT BIDEN WANTS TO FIX THEM! — He Should Start With The Immigration Courts! — “There Is Nothing To Be Gained From Half Measures!”

Dahlia Lithwick
Dahlia Lithwick
Supreme Court Reporter
Slate
Wikimedia Commons — Public Domain
Russ Feingold
Russ Feingold
President, American Constitution Society
Photo: JD Lasica, Creative Commons License

 

https://slate.com/news-and-politics/2021/02/russ-feingold-american-constitution-society-judges.html

Dahlia Lithwick interviews Russ Feingold @ Slate: 

While Donald Trump failed to pass much signature legislation and largely failed to remake the federal government in ways that cannot be immediately corrected, his landmark achievement will be his lasting contributions to the federal judiciary. Breaking the records of his predecessors, Trump seated 234 judges on the federal courts in four years, including three at the Supreme Court. That means that whatever Biden and the Democrats try to do in the coming months and years, most of the efforts will ultimately be in the hands of life-tenured judges, 30 percent of whom were named by Trump. Those judges are overwhelmingly very young, very white, and very male. A preview of what’s likely to come happened just last week, when a federal judge tapped by Trump blocked Biden’s 100-day deportation “pause” with a nationwide injunction.

The question is what Biden and the Democrats can and will do in response to Trump’s enduring legacy. The new president is already making moves that indicate he understands that some of the norms and conventions that guided Barack Obama in building the judiciary are dead and gone. This week the Washington Post reported that the Biden administration is doing away with the formal American Bar Association vetting process that Democratic presidents used to abide by, because it was jettisoned by Republican presidents and because it simply lengthened the process. Biden is also hustling to put together the bipartisan commission he pledged would examine structural reforms for the Supreme Court and the federal judiciary. Former Wisconsin Sen. Russ Feingold is a leading Democrat attempting to strengthen the left’s ability to appoint judges, to match the pace the right has set. He is the president of the American Constitution Society, the left’s answer to the Federalist Society (we spoke last year when he assumed the post). Given the potential of the current moment for big changes in the judiciary, I wanted to ask him what happens next. Our conversation has been lightly edited for clarity.

. . . .

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Read the rest of the interview at the link. 

The disgraceful mess that Trump and McConnell made out of our Federal Judiciary has been a constant theme here @ Courtside over the past four years!

What’s missing from this interview are these fundamental realizations that those of us in the world of immigration and human rights know well but seem to escape most of the others looking to fundamentally change and improve the Federal Judiciary:

  • There are few things that go on in the Federal Judiciary, at any level, as important to human lives and the future of our nation as what takes place in Immigration Court every day;  
  • The Immigration Courts have hit stunning new levels of dysfunction, incompetence, and intentional injustice over the past four years  — they are truly an ongoing national disgrace (“America’s Star Chambers” or “Clown Courts”🤡) and a stain on the humanity of our nation, as well as an abomination that threatens to collapse our entire justice system;
  • Immigration law and “weaponized” Immigration Courts have been the key to the Trump regime’s attack on American democracy and our Constitutional institutions culminating in the deadly Capitol insurrection;
  • The Biden Administration has complete authority to fix the Immigration Courts now — no waiting for Justices or Judges to retire, “negotiating with Mitch and the Federalist Society,” waiting for the scheduling of Senate Confirmation hearings, or humoring home state Senators;
  • Some of the lawyers and advocates who led the legal fight to preserve American democracy over the past four years would be outstanding choices for the Immigration Judiciary (as well as the Article III Judiciary — there is no shortage of diverse progressive talent with “real life retail experience” out here in the NDPA, Russ); 
  • A well-functioning, diverse, independent Immigration Judiciary would not just help advance and enforce the Administration’s progressive, humane, due-process-focused immigration and human rights policies, but also should become a model of “best practices” for the Article III Judiciary, and an extraordinary source of well-trained, experienced, progressive, “practical scholar jurists” for filling positions in the Article III Judiciary;
  • Better understanding of, and commitment to, humanely and properly administering immigration and human rights laws by Federal Judges — and the total elimination of “Dred Scottification of the other” under law — is the absolutely essential “now-missing key” to achieving racial justice and social justice in America;
  • America can’t afford the astounding absence of true immigration scholarship, human understanding of immigrants, practical decision making and problem solving, and an overriding commitment to due process for all persons, including asylum seekers and migrants, that now infects the Federal Court system at all levels;
  • Those seeking to undermine American democracy will continue to exploit the Federal Judiciary’s overall lack of understanding of immigration and human rights laws and their willing abrogation of Constitutional due process and basic concepts of fundamental fairness and human dignity for some of the most vulnerable persons among us — we must fix this problem before it destroys us!

🇺🇸🗽⚖️🧑🏽‍⚖️👍🏼Due Process Forever!

PWS

02-05-21

NAN ARON OF ALLIANCE FOR JUSTICE⚖️SPEAKS OUT ON NEED FOR BIDEN-HARRIS ADMINISTRATION TO LOOK AT BROADER SOURCES FOR FEDERAL JUDICIAL CANDIDATES 🧑🏽‍⚖️👨🏻‍⚖️👩‍⚖️!

Nan Aron
Nan Aron
Founder & President
Alliance for Justice (“AFJ”); Photo: AFJ.org

https://www.nytimes.com/2020/12/11/us/progressive-groups-biden-judges.html?referringSource=articleShare

Carl Hulse reports for the NY Times:

. . . .

In addition to the candidates put forward by Mr. Feingold’s group after a nationwide effort, another coalition of organizations has provided the transition with over 100 names of candidates developed over the past several months.

“The process started earlier so we would be ready,” said Nan Aron, the president of the Alliance for Justice, which in cooperation with nearly three dozen other groups has given the Biden team a list of more than 100 potential nominees. “We are pushing hard for them to make judges a priority.”

. . . .

The progressives say that Democrats must use whatever leverage they can to press their nominees.

“Our view is the administration should push to make judges a critical part of the conversation,” Ms. Aron said. “The Democrats will need to fight for the judges they want.”

Though acknowledging winning confirmations will be difficult — certainly compared with the free hand Republicans have had when controlling both the White House and the Senate — Mr. Feingold said he was optimistic that Mr. Biden, using the available political tools and with strong progressive support, could get his picks on to the courts.

“I see opportunity here,” Mr. Feingold said.

****************

Thanks Nan! Read the rest of the article at the above link!

I just hope that this time around, unlike the Obama Administration, the Biden-Harris Team focuses on what former Senator Russ Feingold of the American Constitution Society might call a “golden opportunity” for broadening and improving the Federal Judiciary. 

That’s, of course, the “judiciary” at the Executive Office for Immigration Review (“EOIR”) which operates (and I use this term loosely, given the disgraceful, deadly dysfunction sowed by the outgoing regime) entirely within the Executive Branch at the DOJ. No need to get Mitch McConnell’s sign off on these judges! (We ultimately need a fully independent Article Immigration Court, which will take legislation.)

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

The mess at EOIR needs immediate attention and aggressive due process reforms. This  is no “small opportunity.” There are more than 500 Immigration Judgeships and another two dozen critically important Appellate Judgeships at the Board of Immigration Appeals (“BIA”) at stake here. 

Together, this “under the radar administrative judiciary” exercises essentially life or death authority over millions of individuals and affects the lives and futures of millions more American families, employers, and communities from coast to coast. While most of the BIA’s decisions are reviewable in the Circuit Courts of Appeals, the BIA’s nationwide authority to set precedents and policies that determine not only the future of millions of humans, but also the conduct of DHS (which has been highly problematic) gives it power that in some ways exceeds that of any Federal Court short of the Supremes.

Sadly, the independence, expertise, and due process performance of  EOIR has deteriorated steadily over the past three Administrations before going into a “death spiral” under the Trump/Miller/Sessions/Barr White Nationalist kakistocracy.

The exceptionally well qualified judicial candidates and competent legal administrators to fix the EOIR disaster are out here in the New Due Process Army. There is no area of judging that combines intellectual challenge, applied due process, human relations, practical problem solving, historical perspectives, ethical norms, and fundamental human values the way that the Immigration Court experience does! 

A new, due process oriented, expert, diverse, representative immigration judiciary at EOIR will not only be a model for best practices for all levels of the Federal Judiciary, but will also provide an exceptional source of experienced candidates for the Article III Judiciary and future public policy positions (the massive failures in these areas over the past four years are an example of why we must do better if we want to save lives, promote equal justice for all, and enhance our democracy). As I always tell my Georgetown Law students, if you can win in Immigration Court, everything else you do in law will be a “piece of cake!”

This is more than just “an opportunity.” Human lives are at stake! National values and the future of the rule of law in America hang in the balance! This isn’t “optional,” nor is it a “back burner” issue! Reforming the Immigration Judiciary is a national imperative that we must insist upon! 

Hey hey, ho ho, the EOIR Clown Show 🤡 has got to go! Let the Biden-Harris Team know!

Due Process Forever!⚖️🗽👍🏼

PWS

12-13-20

FORMER SEN. RUSS FEINGOLD IN THE GUARDIAN: TRUMP’s WHITE SUPREMACISM IS PART OF THE GOP AGENDA!

https://www.theguardian.com/commentisfree/2017/aug/19/republican-party-white-supremacists-charlottesville

Feingold writes:

“It takes approximately 30 seconds to send a tweet. A half hour to draft and release a statement. And the shelf life of both is only marginally longer. We should not commend Republican party elected officials who claim outrage on social media at Trump’s remarks, often without daring to mention his name. The phony claimed outrage becomes dangerous if it convinces anyone that there is a distinction between Trump’s abhorrent comments and the Republican Party agenda.

The lesson from Charlottesville is not how dangerous the neo-Nazis are. It is the unmasking of the Republican party leadership. In the wake of last weekend’s horror and tragedy, let us finally, finally rip off the veneer that Trump’s affinity for white supremacy is distinct from the Republican agenda of voter suppression, renewed mass incarceration and the expulsion of immigrants.

There is a direct link between Trump’s comments this week and those policies, so where is the outrage about the latter? Where are the Republican leaders denouncing voter suppression as racist, un-American and dangerous? Where are the Republican leaders who are willing to call out the wink (and the direct endorsement) from President Trump to the white supremacists and acknowledge their own party’s record and stance on issues important to people of color as the real problem for our country?

Republicans on the voter suppression commission are enabling Trump’s agenda and that of the white Nazi militia
Words mean nothing if the Republican agenda doesn’t change. Governors and state legislatures were so quick to embrace people of color in order to avoid the impression, they too share Trump’s supreme affinity for the white race. But if they don’t stand up for them they are not indirectly, but directly enabling the agenda of those same racists that Republican members were so quick to condemn via Twitter.

Gerrymandering, strict voter ID laws, felon disenfranchisement are all aimed at one outcome: a voting class that is predominantly white, and in turn majority Republican.

 

The white supremacist chant of, “you will not replace us,” could easily and accurately be the slogan for these Republican politicians. Their policies will achieve the same racial outcome as Jim Crow – the disenfranchisement and marginalization of people of color.

It is a sad day when more CEOs take action by leaving and shutting down Trump’s Strategy and Policy Forum, and Manufacturing Council, than elected officials take action leaving Trump’s “election integrity” commission.

Businessman are acting more responsive to their customers than politicians are to their voters. At the end of the day, which presidential council is more dangerous? Which most embodies the exact ideology that Trump spewed on Monday? A group of businessmen coming together to talk jobs or a group of elected officials coming together to disenfranchise voters of color?

Anyone still sitting on the voter suppression commission is enabling Trump’s agenda and that of the white Nazi militia that stormed Charlottesville to celebrate a time when the law enforced white supremacy.

If Republican lawmakers want to distinguish themselves from Trump’s comments, they need to do more than type out 144 characters on their phone. They need to take a hard look at their party’s agenda.”

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Read the full article at the link.

I’ve noticed the clear pattern going back to the beginning of the campaign: Trump says or does something totally outrageous; GOP leaders disassociate themselves and claim it doesn’t represent the “real” GOP (whatever that might be); shortly thereafter the same folks go back to supporting Trump and the GOP agenda directed at insuring White control. Nobody switches party, resigns in protest, or tells voters how incompetent and dangerous Trump is. Indeed, these guys are scared silly that they will actually turn off Trump’s White Nationalist base that insures them power even though it’s been many years since they racked up a majority of the popular vote in a national election. Trump then goes on to the next outrage, and the process repeats itself.

Someday, the majority of American voters might actually get a Government that represents their interests rather than those of a White Nationalist minority. But, not any time soon if the GOP can prevent it. So far, they are doing a bang up job of it.

PWS

08-19-17