⚖️👩🏾‍⚖️💡FIXING THE IMMIGRATION COURTS! 👨‍🔧 — Preoccupied With Nativist Schemes & Expensive, Cruel, Wasteful, & Demonstrably Counterproductive Mega-Enforcement Gimmicks, Neither Congress Nor The Administration Has Done Realistic Planning For Eliminating The Immigration Court Backlog! — So Don & Brendan Kerwin Have Done Their Work For Them — Their “Interactive Toolbox” 🧰 Is Now Available To EVERYONE Right Here!

Donald M. Kerwin
Donald M. Kerwin
Senior Researcher, Keough School of Global Affairs, University of Notre Dame

https://journals.sagepub.com/doi/10.1177/23315024241226645

Executive Summary

This paper examines the staffing needs of the US Department of Justice’s Executive Office for Immigration Review (EOIR), as it seeks to eliminate an immigration court backlog, which approached 2.5 million pending cases at the end of fiscal year (FY) 2023. A previous study by the Center for Migration Studies of New York (CMS) attributed the backlog to systemic, long-neglected problems in the broader US immigration system. This paper provides updated estimates of the number of immigration judges (IJs) and “judge teams” (IJ teams) needed to eliminate the backlog over ten and five years based on different case receipt and completion scenarios. It also introduces a data tool that will permit policymakers, administrators and researchers to make their own estimates of IJ team hiring needs based on changing case receipt and completion data. Finally, the paper outlines the pressing need for reform of the US immigration system, including a well-resourced, robust, and independent court system, particularly in light of record “encounters” of migrants at US borders in FY 2022 and 2023.

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

Wow! This is beyond amazing! Kudos and thanks to Don and Brendan for this incredibly helpful and informative analytical tool. Get the full report and access to all the charts and interactive features at the above link!

Just yesterday, my friend, Arizona “practical humanitarian” Robb Victor, was asking about how legislators and policy makers could do better planning for hiring Immigration Judges and Asylum Officers to reduce the backlog and address processing problems at the border. This is for you, Robb!

As Don and Brendan cogently point out, hiring alone can’t solve the problem! America needs positive, due-process-oriented, reforms to our legal immigration system embracing the reality and the economic power of robust orderly refugee and asylum acceptance and increases in legal immigration of all types. 

The longer we ignore the need for these positive changes, and embrace the dangerous and defective myth that we can or should continue the failed program of attempting to enforce our way out of the migration realities and opportunities of the 21st century, the longer the disorder and grotesque waste of human lives and fiscal resources by our nation will continue.

And, of course, the innovative, low budget, potentially high-impact “Judges Without Borders” proposal by Judge Tom Lister and me should be part of any legislative package to improve the asylum system! See https://immigrationcourtside.com/2023/12/13/%F0%9F%91%A9%F0%9F%8F%BD%E2%9A%96%EF%B8%8F%F0%9F%91%A8%F0%9F%8F%BB%E2%9A%96%EF%B8%8F-%E2%9A%96%EF%B8%8F%F0%9F%97%BDjudges-without-borders-an-innovative-op/.

Why not plan for success rather than investing in failure? As my friend Robb says, “give peace a chance!”✌️ 

🇺🇸 Due Process Forever!

PWS

02-18-24

  

⚖️🗽 THERE ARE WAYS TO HARMONIZE & HARNESS THE REALITY & HUGE POSITIVE POTENTIAL OF GLOBAL HUMAN MIGRATION— They Are Neither “Simple” Nor “Immediate” — But “Deterrence Only” Definitely Is NOT Among Them!☠️

Amy E. Pope
Amy E. Pope
Director General
International Organization for Migration
PHOTO: IOM
Filippo Grandi
Filippo Grandi
United Nations High Commissioner for Refugees
PHOTO: UNHCR

From Time Magazine:

https://time.com/6344740/global-immigration-system-reform/

IDEAS

BY AMY E. POPE AND FILIPPO GRANDIDECEMBER 11, 2023 11:43 AM EST

Pope is the Director General (DG) of the International Organization for Migration; Grandi is the UN High Commissioner for Refugees

F

rom the sands of the Sahel to the waters of the Mediterranean, from the wilderness of the Darien in Central America to the Bay of Bengal, millions of refugees and migrants journey along routes that are synonymous with desperation, exploitation and lost lives. As the heads of the two U.N. agencies that protect and support people on the move, we believe this is one of the great global challenges of our time.

The loudest political response has been to claim that only tougher action can resolve it. Most recently, a number European states have announced  plans to “offshore” or simply deport asylum seekers and/or make conditions around immigration and asylum more hostile.

Such plans are increasingly in vogue. They are also wrong. They overly concentrate on deterrence, control and law enforcement, and disregard the fundamental right to seek asylum. This approach is ineffective and irresponsible, leaving people stranded or compelling them to take even greater risks.

We do not want to understate the scale of the challenge created by today’s population movements. But to meet it, bigger thinking and bolder leadership are needed. The right strategy would tackle every stage of the journey, through a comprehensive and route-based approach of engagement. So, what should such a strategy look like?

First, we need to address the issues that compel people to leave home in the first place. Resolving conflicts, improving security, reinforcing human rights, providing sustained and reliable financial support to boost growth and resilience—all address the root causes of displacement and migration by investing in people’s futures. Failing to make these investments and cutting development aid are false economies.

Nonetheless, millions of people have no choice but to leave home—protracted conflicts, widescale rights abuses, intolerable poverty, and the devastating effects of climate change are just some of the causes. Yet the same point applies: offer hope and opportunity and people will take it.

. . . .

Two ingredients are essential for our proposals to succeed: cooperation and real responsibility-sharing between governments, even in these divisive times; and attention to every part of the journey. An approach focused mainly on deterrence will fail—indeed, it is already failing.

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

Border Death
During this Christmas season, GOP Nativists in Congress, their Dem enablers, and the Biden Administration are “debating” how many forced migrant men, women, and children should be killed, tortured, maimed, imprisoned, separated, or otherwise irreparably damaged at the U.S. Border to secure more bombs and weapons for foreign wars!  This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
Tomas Castelazo
To comply with the use and licensing terms of this image, the following text must must be included with the image when published in any medium, failure to do so constitutes a violation of the licensing terms and copyright infringement: © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 3.0

Read the complete article at the link!

“Offer hope and opportunity and people will take it!” That’s essentially what the Supremes said 35 years ago in the landmark decision INS v. Cardoza-Fonseca requiring a suitably generous interpretation and application of the international “refugee” definition that also governs asylum. 

Over the next several decades, slow but noticeable progress was made toward “realizing the full promise of Cardoza.” At one point, largely as a result of some Court of Appeals interventions, and a few positive BIA precedents granting asylum in the mid to late 1990’s, the “combined protection granted rate” for asylum, withholding, and CAT by EOIR, the primary precedent-setter and adjudicator of asylum law in the Executive Branch, exceeded 60% for those actually able to get to merits hearings in the somewhat haphazard system. 

However, over the past several Administrations most of that progress has been reversed, sometimes intentionally, other times negligently. The dysfunction, mounting backlogs, poor precedents, lack of asylum expertise, endless “any reason to deny gimmicks,” and the dreaded “Aimless Docket Reshuffling” have made a mockery of justice for asylum seekers at EOIR. It has also generated a tidal wave of failure and mindless attempts by the USG to evade the rule of law and their responsibilities to fairly adjudicate asylum claims that goes far beyond our borders.

None of the nativist, restrictionist, proposals now being discussed in the Senate would help this situation! Indeed, they would undoubtedly make everything worse in the long run! They will also compromise our national security and enrich and embolden human smugglers and cartels. Nativist deterrence is definitely a “lose-lose proposition” even if many U.S. politicos are unwilling or unable to admit that!

In many ways, the “head in the sand” approach of prosperous nations to human migration reminds me of their past attempts to deny or ignore the effect of climate change — something that is directly related to forced migration and not adequately addressed by the post WW II refugee framework.

I was heartened to see among the recommendations in this article:

But this is not just about policies and strategies. It means engaging more closely with the people in mixed movements, such as offering practical and legal advice on accessing protection, to guidance on applying for third-country options. Such a chain of engagement might require new, bespoke models of collaboration but, if done strategically, would address a range of situations.\

This supports the recent proposal that Retired Wisconsin Judge Thomas Lister and I published on “Courtside” for the creation of a volunteer group of “Judges Without Borders” (“JW/OB”). https://immigrationcourtside.com/2023/12/13/%F0%9F%91%A9%F0%9F%8F%BD%E2%9A%96%EF%B8%8F%F0%9F%91%A8%F0%9F%8F%BB%E2%9A%96%EF%B8%8F-%E2%9A%96%EF%B8%8F%F0%9F%97%BDjudges-without-borders-an-innovative-op/

Volunteer retired judges from various State and Federal systems could potentially assist the USG and NGOs by advance screening applicants, inside and outside the U.S., for asylum with an eye toward helping individuals make good choices and directing those unable to meet the current refugee and asylum criteria to humane alternatives. It’s exactly the type of new, creative, “model of collaboration” (and cost efficiency) that the authors recommend!

Given the current state of the world, with active wars on several fronts, and many corrupt and/or repressive governments, it’s highly likely that forced migration will continue to increase in the foreseeable future. That makes it essential that developed nations work with each other and humanitarian experts on viable, durable solutions that recognize the complexity, the opportunities, and the inevitability of human migration. 

On Meet the Press today, Sen. Lindsey Graham (R-SC) spouted virtually every “border myth” in the book, without much effective pushback from moderator Kristen Welker. In particular, Welker continued her practice of not featuring any experts who actually work with forced migrants at the border. Meanwhile, Graham was unwilling to condemn Trump’s Hitlerian language about immigrants “poisoning the blood” despite numerous opportunities by Welker for him to do so.

What Graham didn’t do, and Welker didn’t press him on, was establish any connection between eliminating asylum and either reducing terrorist threats or fighting drug smuggling which has been shown time and again to have little or nothing to do with individuals struggling to get appointments through “CBP One” or turning themselves in to CBP upon entry to submit to asylum screening.

Additionally, Graham continued to repeat, without evidence (other than one lame anecdote), the nativist claim that almost nobody coming to the border has a legitimate fear of return. That contradicts almost all reports from those who actually work with forced migrants at the border and elsewhere. It’s also remarkable because the vast majority of those who have been allowed into the U.S. in the past year have not had an opportunity to document and present their claims in the fair merits hearing required by law. Yet the “border debate” remains largely one-sided and reality free!

That’s not to minimize the failure of the Biden Administration to heed expert advice and make major administrative, personnel, and expertise changes in the asylum adjudication system and the Immigration Courts on “Day One.” Nor does it excuse their failure to set up an organized, mutually beneficial, system for resettling those screened the into the country away from border points of entry.

Again, the absence of coherent rational discussion of asylum adjudication by experts by Meet the Press and other so-called “mainstream media” is both telling and disturbing. Certainly, internationally-recognized experts like Filippo Grande and Amy Pope must be available to Welker. Why don’t we ever hear from them?

Demand that Congress and the Biden Administration stop the toxic nonsense of “trading” the lives and rights of forced migrants for bombs and weapons to fight foreign wars. It’s time to get serious about developing immigration and refugee policies that operate in the “real world” of human migration, eschew expensive, cruel, proven to fail “deterrence only,” and give primacy to the humanity and rights of migrants and the opportunities they present for our world’s future!

🇺🇸 Due Process Forever!

PWS

12-16-23

👩🏽‍⚖️👨🏻‍⚖️ ⚖️🗽”JUDGES WITHOUT BORDERS” — An Innovative Open Letter Proposal For Budget-Friendly Assistance With The Humanitarian Situation At & Beyond Our Southern Border By Retired Judges Thomas E. Lister & Paul Wickham Schmidt! 

Thomas Lister
Hon. Thomas Lister
Retired Jackson County (WI) Circuit Judge
Hon. Paul Wickham Schmidt
Hon. Paul Wickham Schmidt
U.S. Immigration Judge (Ret.)
Adjunct Professor, Georgetown Law
Blogger, immigrationcourtside.com

We graduated from UW Law School in 1973. As retired judges we have been searching for ways in which individuals like us and our many retired judicial colleagues can use our unique legal skill sets to aid in addressing the humanitarian crisis at our borders. In that spirit, we propose to Congress, the Administration, and other decision-makers involved, the creation of “Judges Without Borders.” First, here is a brief summary of our respective backgrounds.

 

Paul Wickham Schmidt served as a U.S. Immigration Judge, U.S. Department of Justice (“DOJ”) in Arlington, Virginia (2003-16), after being an Appellate Judge of the Board of Immigration, Appeals (1995-2003), where he was Board Chair for six years. He authored the landmark decision: Matter of Kasinga, extending asylum protection to victims of female genital mutilation. He previously served as Acting General Counsel and Deputy General Counsel (1979-87) of the former Immigration and Naturalization Service, and was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986, as well as establishing the modern Immigration Court system in the DOJ. His experience also includes being a partner in two major law firms, Jones Day and Fragomen.

 

Paul is retired, and now is an Adjunct Professor of Law at Georgetown University Law Center. He has authored numerous articles on immigration law and speaks, lectures, and writes in forums throughout the nation on contemporary immigration issues, due process, and U.S. Immigration Court reform. He publishes the blog immigrationcourtside.com and is a member of the Round Table of Former Immigration Judges and BIA Appellate Judges.

 

I am a former district attorney, county corporation counsel, trial lawyer, and circuit court judge.  While serving as a judge, I formed a collaborative justice coordinating council, and received one of only two national multi-year grants designed to create family treatment courts, addressing not only the needs of drug and alcohol dependent individuals, but their families as well through a holistic approach and diversion programming. I worked closely with the Ho-Chunk Nation to help create its Healing to Wellness Courts. Upon retiring, I led a successful litigation effort to stop the proliferation of frac-sand mining in Wisconsin’s Driftless region, utilizing anticipatory private-nuisance doctrine.

 

For the last several years, we have sought to find ways to help those who legally seek to gain asylum in the United States. Initially we proposed an initiative whereby retired State, and Federal judges would volunteer to attend a multi-week program to become trained in the laws and procedures governing eligibility screening; then potentially, aiding the overwhelmed corps of Immigration Judges by pre-filtering hundreds of thousands of potentially meritorious asylum claims, while at the same time advising those who likely will not qualify, that they probably will, potentially after many months of detention, be deported to their native country, or a safer alternative destination. We contemplated that retired judges could also be available to take some of the routine procedural and adjudicative burdens off of Immigration Judges so that they could concentrate on adjudications such as asylum, requiring their specialized training and experience.

 

Most of those seeking asylum at our border have experienced some type of trauma in their home countries. However, because the international refugee definition that the U.S. has adopted covers only harm resulting from race, religion, nationality, political opinion, or membership in a particular social group, and the evidentiary burdens can be daunting, some of those who have been harmed or reasonably fear harm will not be able to meet the legal criteria for asylum in the U.S. In such cases, individuals will have risked their, and perhaps their family’s lives, and their limited resources on a dangerous journey to the U.S. border, that can only end in rejection, perhaps detention, prosecution, separation from family, and ultimately expulsion to their home countries or to potentially dangerous conditions in Mexico.

 

To better and more constructively address this untenable and inhumane situation, we now propose “Judges Without Borders.” This group would consist of trained volunteers with prior judicial experience who are willing to dedicate some time to the task of going into venues south of our border, as well as resettlement centers in the U.S., to meet, consider and screen those claiming a right to asylum, to assess their likelihood of success, and to address and advise them accordingly, humanely, and realistically, regarding what most probably lies ahead for them. We also see an opportunity to be of service to overwhelmed NGOs and legal services providers in the United States in screening potential asylum cases and advising those unlikely to succeed on what, if any, other options they might have in individual circumstances.

 

Ideally, our review panels would consist of three judges: one Democrat, one Republican and one Independent for a balanced, realistic, and comprehensive approach. Interviews would be held in venues that are outside the applicant’s native country, to protect potential asylum seekers from retribution. The information gathered would be confidential, so that it could not be used against the potential applicants.

 

We believe that by using the skills of retired jurists with high level practical experience in assessing legal claims, Judges Without Borders, could go a long way to relieving the swamped immigration system, providing accurate helpful information about the realities of the U.S. asylum and immigration systems so that individuals can make informed life decisions, reducing the flow of immigrants dangerously entering or attempting to enter the U.S. with false hopes, and correcting misinformation about the U.S. system provided by human smugglers and other illegal operatives who exploit the predicament of desperate individuals. Volunteer judges, who generally are on pensions or some other type of pre-existing retirement income, would serve without pay, receiving only travel food, and lodging expenses.

 

If our elected leaders really want to solve the humanitarian crisis at the border, we believe that they ultimately must consider other practical and potentially expansive reforms to deal more realistically and humanely with the realities of 21st century migration, and to constructively reform our currently dysfunctional asylum adjudication system and our legal immigration systems which were developed to deal with past realities in worldwide migration that might no longer apply. However, in the interim, we believe that everything possible, including some new, creative, budget-friendly approaches, must be used to alleviate the humanitarian crisis and unnecessary suffering (even death) at our borders.

 

We recognize that practical solutions will not be easy as there are many corporate interests profiting from private immigration detention, wall-building, river barriers, and all sorts of so-called “border, security technology,” much of which is expensive, yet ultimately ineffective in dealing with the root causes of human migration. The money saved would be better spent on honoring our nation’s solemn pledge to support our allies, with whatever it takes, for as long as it takes, while also honoring our legal and humanitarian commitments to refugees. We must remain a nation that demonstrates humanitarian leadership and can be trusted by the world, to keep our promises, particularly to some of the world’s most vulnerable humans.

 

Thank you for considering our proposal. We stand ready to help in any way possible.

 

 

Respectfully submitted,

 

 

 

Hon. (Ret.) Thomas E. Lister, J.D.

 

 

 

Hon. Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

 

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

Five decades after our graduation from U.W. Law, we’re still thinking “outside the box” of ways to improve our legal system. Retired American judges represent a societal investment in high-level decision-making and problem-solving! Why not keep using those talents in creative ways after regular service on the bench ends?

Unlike ramping up permanent, or even temporary, government hiring, volunteer retired judges, from all systems, are a flexible, low-cost, high-return potential resource that can be quickly deployed and adjusted, redeployed, or “un-deployed” as emergencies arise and are resolved!

We’d love to hear your views on our proposal!

🇺🇸 Due Process Forever!

PWS

12-13-23

🇺🇸“GOOD MORNING OHIO!” — MY KEYNOTE SPEECH TO AILA THIS MORNING 🗽— AN NDPA CALL TO ACTION! ⚖️— “The EOIR Clown Show Has Got To Go!”🤡👨🏻‍⚖️👎🏻

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

Friends, you know, and I know, what is the biggest crisis facing the American justice system today. One that undermines and threatens racial justice, social justice, equality before the law, voting rights, American values, and indeed the very foundations of our democratic institutions and our justice system.

It’s imperative that our incoming Administration and its leaders fully recognize the overwhelming importance and extreme urgency of immediately ending the ongoing, deadly, and dangerous “Clown Show” at EOIR – the Executive Office for Immigration Review.

Under the defeated but not yet departed regime, EOIR has been weaponized by White Nationalist nativists to function as America’s Star Chambers. Once envisioned by its founders, including me, as a potential “jewel in the crown” of American justice, EOIR now has become an ungodly nightmare of anti-due process, anti-immigrant propaganda, bad judges, bogus stats, uncontrollable backlogs, malicious incompetence, stupid regulations, daily doses of irrationality, abuse of private attorneys, and institution of “worst practices.” But, it doesn’t have to be that way! No, not at all!

With courage, bold action, and, most important, the right people in place in leadership and key judicial positions, EOIR can be fixed: sooner, not later. The Immigration Courts can, indeed, through teamwork and innovation become the world’s best courts guaranteeing fairness and due process for all, promoting a model of best practices for the Federal Judiciary as a whole, and providing a trained and ready source of due-process oriented judges with strong immigration, human rights, and equal justice backgrounds for the Article III Judiciary and public policy positions.

EOIR will then be positioned for the essential transition to an Article I independent U.S. Immigration Court when we have the votes.

But, it will require a far more progressive, visionary, and aggressive approach than past Democratic Administrations. We must immediately (and legally) clear out the deadwood and get the problem solvers from the New Due Process Army (“NDPA”) — mostly now in the NGO, clinical, and private sectors, folks like you and your colleagues — in place to fix this horribly broken system.

Read my complete speech here:

OHIO AILA

DUE PROCESS FOREVER!

PWS

12-04-20

THANK UW LAW: Unemployment Insurance Was The Brainchild of Two Amazing UW Law Students Who Were Also In Love — It All Began In L-1 Torts! — PLUS: The “Wisconsin Idea” Continues Today Through The Work of Professor Erin Barbato!

Michael S.Rosenwald
Michael S. Rosenwald
Enterprise Reporter
Washington Post

https://www.washingtonpost.com/history/2020/04/18/unemployment-checks-great-depression-coronavirus/h

Michael S. Rosenwald writes in the WashPost:


A line to apply for unemployment benefits in San Francisco in 1938. (Library of Congress)

A line to apply for unemployment benefits in San Francisco in 1938. (Library of Congress)

They first laid eyes on each other in torts class.

It was 1923, a period of prosperity before the Great Depression.

He was the son of Walter Rauschenbusch, a prominent theologian and key figure in the Social Gospel movement. She was the daughter of Louis Brandeis, the progressive Supreme Court justice and the most famous Jew in America. Each inherited their parents’ zeal for social justice.

At the University of Wisconsin Law School, these two idealists — Elizabeth Brandeis and Paul Raushenbush — noticed each other immediately. She was brainy and shy, her hair long and dark. He was handsome and outgoing. On hikes and canoe outings, they fell in love romantically and intellectually — a partnership instrumental in passing the nation’s first unemployment compensation law.

The story of how they did it is largely forgotten, but the 22 million people who have applied for unemployment during the coronavirus pandemic — and, of course, the millions before them — have this unlikely couple to thank. The law they conceived of and helped pass in Wisconsin laid the foundation for unemployment insurance throughout the country.

“Their story is absolutely staggering to think about right now,” said their grandson Paul Brandeis Raushenbush, a Baptist minister and senior adviser for public affairs and innovation at Interfaith Youth Core, a nonprofit organization. “It was their life’s work to make laws like this available to everyone.”

Raushenbush, who lives in New York, has spent the last few years writing a history of his family, including interviewing his father, Walter, who is 92 and lives in McLean, Va. Raushenbush was working on the unemployment insurance section as the coronavirus pandemic arrived in America.

Elizabeth Brandeis Raushenbush and Paul Raushenbush. (Courtesy of Paul Brandeis Raushenbush)
Elizabeth Brandeis Raushenbush and Paul Raushenbush. (Courtesy of Paul Brandeis Raushenbush)

As part of his research, Raushenbush has been reading a privately published book his grandparents wrote based on interviews they gave to a Columbia University oral history project. The book is the story of the legislation — where the idea came from, the characters involved, how the law was ultimately passed.

“It really reads like a novel,” Raushenbush said.

The main characters, of course, are his grandparents.

And Wisconsin.

His grandmother moved there to attend law school. She had lost her job as a researcher for the D.C. Minimum Wage Board following the Supreme Court’s ruling that the minimum wage for women was unconstitutional. Justice Brandeis, who as a lawyer and jurist was renowned for his progressive stance on social issues, did not cast a vote because of his daughter’s job.

E.B., as she was known to family and friends, wanted a career at the intersection of economics, labor and the law. She hoped to attend an elite East Coast law school, but those programs, including Harvard, where her father studied, didn’t accept women. With her father’s approval, she chose the University of Wisconsin, where the “Wisconsin Idea” — fusing academic research to solving social problems — was flourishing.

“I have no doubt that the Wisconsin Law School is good enough for your purposes,” E.B.’s father wrote to her, “and should think it probable that you would find economics instruction, and doubtless, other considerations more sympathetic there than at Yale.”

Her future husband chose Wisconsin for the same reason. There, the couple studied under professor John R. Commons, an influential social economist who crafted Wisconsin’s workers’ compensation law. Commons tried and failed several times to pass legislation protecting unemployed workers, whose numbers were soaring, especially after the stock market crash in 1929.

Paul Raushenbush signing the paperwork for the first unemployment compensation check in 1936. (Courtesy of Paul Brandeis Raushenbush)
Paul Raushenbush signing the paperwork for the first unemployment compensation check in 1936. (Courtesy of Paul Brandeis Raushenbush)

Commons took a particular interest in his graduate students, inviting them for regular dinners on Friday nights to discuss societal problems.

“I suppose the characteristic thing about Commons was that he was trying to use his brains and enlist the brains of his students in attempting solutions of economic problems,” Raushenbush said during the Columbia University oral history interviews. “This was no ivory tower guy. Sure, he did research and wrote books, but perhaps the main interest that attracted his students was that they were being invited to participate in an attempt to deal with difficult problems on an intelligent basis.”

By 1930, E.B. and her husband both were teaching economics at the University of Wisconsin. They had become friends with Philip La Follette, the local district attorney, whose parents were friends with Justice Brandeis. One day in June, La Follette invited the couple, along with another Wisconsin economist, Harold Groves, to his house in Madison.

La Follette told them he planned to run for governor, that he planned to win, and that he wanted to pass legislation instituting unemployment compensation. He asked the trio to come up with a plan.

And did they ever.

They spent the weekend hiking along the Wisconsin River batting around ideas. Their key idea — one that survives today — was that the benefits should be funded entirely by employers, thus giving them the incentive to maintain steady levels of employment or bear the cost of not doing so. The economists also decided that Groves, who grew up on a Wisconsin farm, should run for the State Assembly and introduce the legislation.

Everything clicked.


In 1932, Wisconsin Gov. Philip La Follette signs the nation’s first unemployment measure into law. Elizabeth Brandeis Raushenbush and Paul Raushenbush are second and third from the left. (Courtesy of Paul Brandeis Raushenbush)
In 1932, Wisconsin Gov. Philip La Follette signs the nation’s first unemployment measure into law. Elizabeth Brandeis Raushenbush and Paul Raushenbush are second and third from the left. (Courtesy of Paul Brandeis Raushenbush)
The first unemployment check issued in Wisconsin. (Wisconsin Historical Society)
The first unemployment check issued in Wisconsin. (Wisconsin Historical Society)

. . . .

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

Read the rest of the article in the WashPost at the link.

Scholarship, teamwork, creativity, hard work, and a healthy dose of romance produces results that are still “making a difference” today. Nice story! Beyond that, it’s an inspiring story for today’s world.

What if we had more folks like the Raushenbusches in government today? Folks looking for ways in which government could work to make the lives or ordinary working people better. Compare that with the “Trump Kakistocracy,” a bunch of self-centered incompetents mostly out to disable government, screw working folks, line their own pockets, glorify and suck up to their “Supreme Leader-Clown,” and shift blame for their mess, all while attempting to advance a destructive far-right political agenda that cares not for the public good! Then we had folks like Phil La Follette; now we have Stephen Miller!

Professor Walter Brandeis Raushenbusch, the son of Elizabeth & Paul, was on the faculty of U.W. Law when I was there from 1970-73. However, I never had him for a class. We did study the “LaFollette Era” and its contributions to President Roosevelt’s “New Deal” in several of my classes.

I believe that U.W. Law gave me a strong grounding in teamwork with my colleagues (now retired Wisconsin State Judge Thomas S. Lister was one), how to apply scholarship to achieve practical results, and solving complex problems.

Speaking with Judge Lister earlier this year during a “pre-lockdown” visit with his wife Sally to D.C., I could see how our time together at U.W. Law had a continuing profound influence on both of our careers, particularly the “judicial phases.” In our different ways, we were always striving to establish “best practices,” promote “good government,” and make the “system work better” for the public it served. Just like some of the “progressive ideas” that were interwoven with our legal education in Madison. “Teaching from the bench” was how I always thought of it. Sometimes we succeeded, other times not so much; but we were always “in there pitching,” even up to today. See, e.g., the “Lister-Schmidt Proposal” for an Auxiliary Judiciary for the U.S. Immigration Courts here: https://immigrationcourtside.com/2019/08/19/an-open-letter-proposal-from-two-uw-law-73-retired-judges-weve-spent-90-collective-years-working-to-improve-the-quality-delivery-of-justice-in-america/.   We haven’t given up on this one!

Thomas Lister
Hon. Thomas Lister
Retired Jackson County (WI) Circuit Judge

And, the “Wisconsin Idea” is still alive and thriving at U.W. Law, thanks to dedicated professors like my good friend and fellow warrior for the “New Due Process Army,” Professor Erin Barbato, Director of the U.W. Immigrant Justice Clinic. Erin uses creative scholarship, teaches practical, usable, courtroom and counseling skills, promotes teamwork, and saves “real lives” in her work with asylum seekers and other migrants. She is also a role model who is inspiring a new generation of American lawyers committed to advancing social justice and guaranteeing Due Process and fundamental fairness for all. Indeed, Erin was a guest lecturer at my Georgetown Law class and inspired my students with her courage, energy, and real life examples of “applying law to save lives!” It really made the “textbook come alive” for my students! Thanks for all you do, Erin!

Professor Erin Barbato
Professor Erin Barbato
Director, Immigrant Justice Clinic
UW Law

On Wisconsin!

On Wisconsin!
On Wisconsin!

Due Process Forever!

PWS

04-19-20

AN “OPEN LETTER PROPOSAL” FROM TWO UW LAW ‘73 RETIRED JUDGES — We’ve Spent 90+ Collective Years Working To Improve The Quality & Delivery Of Justice In America On Both The State & Federal Levels, In The Private & Public Sectors — What We’re Seeing Now Is Shocking, Heartbreaking, Inexcusable, & Unnecessary — It’s Time For Legislators & Policy Makers To Start Listening To Those Of Us With New Ideas Based On “Real Life” Experiences & Observation!

Thomas Lister
Hon. Thomas Lister
Retired Jackson County (WI) Circuit Judge
Me
Me

A CONCEPTUAL PROPOSAL FOR AN AUXILIARY IMMIGRATION JUDICIARY

 

By

 

Paul Wickham Schmidt, Retired U.S. Immigraton Judge and Former Chair, U.S. Board Of Immigration Appeals

 

&

 

Thomas Lister, Retired Wisconsin Circuit Judge

 

 

 

Drawing on our judicial expertise gained over decades of working in both Federal and State judicial system, we respectfully set forth a concept for those working in the legislative, political, legal, and judicial systems to use and further develop to promote better, fairer, and more efficient judicial decision-making and to make better use of existing and future judicial resources both in and outside the U.S. Immigration Court system.

To save time, and since neither of us purports to be a legislative draftsperson, instead of submitting a “draft bill,” or the “outline” of such a bill, we advance an idea and the conceptual and practical justifications for it for your consideration and future use in drafting actual legislation.

 

No knowledgeable individual thinks the current dysfunctional U.S. Immigration Court system can continue without imploding. Just feeding more new, permanent Immigration Judges into an unfair and broken system actually is making things worse as well as outrageously wasting our taxpayer money at a time when deficits are skyrocketing.

 

All too many newly hired Immigration Judges appear to be neither the best qualified to be judges nor, even if qualified on paper, properly trained in how to deliver “full due process with efficiency” under the immigration laws and in strict compliance with the Due Process Clause of our Constitution.

 

On the other hand, many retired judges from other Federal and State systems have proven expertise and track records that would allow a competent judicial administrator (there are, to our knowledge, NONE of these currently in DOJ or EOIR) to determine if they are suitable for emergency service and how they could best be trained to effectively and efficiently use their skills as “Auxiliary Immigration Judges” to augment the current and future Immigration Judiciary. 

 

Moreover, since most retired Federal and State judges already have adequate pensions or other means of support, asking them to volunteer to serve on the basis of limited compensation, or even just reimbursement for out of pocket expenses, would not be unreasonable.

 

We are offering this idea as a way in which those of us with lifetime legal and judicial expertise can use it to improve the delivery of justice in America; it is not intended as a means of enriching or offering alternative full-time employment to current retired judges, from any system.

 

To name just a few areas of “low hanging fruit,” we believe that:

 

      Most bonds;

      Initial “Master Calendars” (arraignments);

      Master Calendar scheduling for Individual Hearings;

      Motions Calendars;

      “Status” Calendars;

      Stipulated Final Order and Withdrawal Calendars;

      Individual Hearings on Cancellation of Removal for long-time lawful and unlawful residents;

      Uncontested Adjustments of Status and other types of equitable waivers; and

      Voluntary Departure as the sole application cases

 

have elements in common with most other types of judicial work.

 

Using Auxiliary Judges for such cases would allow those judges, from any Federal or State system, with sound work records, that is, those with impeccable reputations for fairness, professionalism, judicial efficiency, and impartiality, to handle these types of immigration adjudications with a modest amount of additional training and in close consultation and cooperation with the sitting Immigration Judges in a particular location.

 

In this respect, our emphasis would always be on aiding existing, sitting U.S. Immigration Judges, in cooperation with them and at their request, in the ways those sitting judges deem most helpful, fair, and effective.

 

It would never be on fulfilling inappropriate and unethical “production quotas,” numerical goals, or pandering to interests who want to use the judicial system to fulfill political or law enforcement objectives inconsistent with Due Process, fundamental fairness, or sound judicial administration.

 

We do not propose that “Auxiliary Judges” ever work directly for or under the supervision of non-judicial political officials as is now, disturbingly, the case in our Immigration Court System. Indeed, the current unwarranted attack on the independence and professionalism of Immigration Judges by unqualified political officials seeking to “decertify” the Immigration Judges’ professional association, the National Association of Immigration Judges, is a prime example of the type of counterproductive activity in which “Auxiliary Judges” should never be allowed to participate, in any way.

 

By contrast with the types of more straightforward judicial work described above as potential “low hanging fruit,” Asylum Cases, Withholding of Removal Cases, and applications for protection under the Convention Against Torture involve complex legal and factual issues. These are matters that should NOT be delegated to retired judges from other fields.

 

Indeed, one huge advantage of our proposal is that it would allow existing and future Immigration Judges to spend adequate time (a contested fair hearing on any of these aforementioned protection matters would take a well-trained judge 3-4 hours, minimum) on these types of cases and to receive more and better training on how to fairly and timely adjudicate, consistent with Constitutional Due Process, claims for protection under these laws and International Conventions.

 

Of course, there would be some administrative costs involved with training and maintaining a list of those willing to serve as “Auxiliary Immigration Judges.” But, they pale in relation to the costs of continuing to throw new permanent positions into a badly broken and dysfunctional system.

 

Indeed, some, such as the ABA Commission on Immigration, have observed that additional Immigration Judge hiring under current conditions has demonstrably been a waste of taxpayer money that has actually made the system worse and further impaired the delivery of Due Process to those vulnerable individuals whose lives depend on fair, professional, and efficient administration of Due Process and fundamental fairness in our Immigration Courts.

 

Sadly, we surmise that significant amounts of the “assembly line (in)justice” currently being encouraged and delivered to represented individuals in today’s Immigration Courts will eventually have to be re-adjudicated by orders of the Article III reviewing courts because of legal and/or factual errors. The only reason we don’t include unrepresented individuals in our equation is that these, unfortunately, are often “railroaded” out of our country without realistic access to the Article III Courts.

 

As lawyers with a combined 90 years of experience working in State and Federal justice systems, as prosecutors, judges, private litigators, educators, and government officials, at both the national and local level, we cannot in good conscience watch the continued deterioration of justice in the Immigration Courts while constructive ideas for improvements and efficiency and fairness are ignored or left unaddressed.

 

The concept of using retired State and Federal Judges outside the Immigration System to do certain types of cases to augment justice and relieve the incredible stress on full time Immigration Judges, in times of emergency or workload surges, without all the problems inherent in the current hiring of permanent judges by the DOJ, easily could be incorporated into one of the “Independent Article I Immigration Court” bills being advocated and advanced by groups such as the ABA, FBA, AILA, and the National Association of Immigration Judges (“NAIJ”).

 

The current system is dying before our eyes. We need to “pull out all the stops,” consider “every potential concept,” and utilize “positive professional creativity” (the antithesis of the negative energy devoted to cruel and counterproductive “gimmicks” and outright illegal actions) designed to enhance, rather than denigrate, Due Process, fundamental fairness, and judicial efficiency without sacrificing quality.

 

It is in that spirit that we respectfully request those involved in legislative reform of our Immigration Court system to consider incorporating our concept of an “Auxiliary Immigration Judiciary” into overall legislative proposals for positive reform of the Immigration Courts now being advanced by all of the leading voices in the field.

Respectfully submitted,

Thomas Lister, Middleton, WI

Paul Wickham Schmidt, Alexandria, VA

August 19, 2019

 

CALL US CRAZY, BUT . . . . THERE ARE SOLUTIONS TO THE IMMIGRATION COURT BACKLOG PROBLEM THAT WILL ENHANCE FAIRNESS & DUE PROCESS WITHOUT BREAKING THE BANK — It Just Requires Some Imagination, Initiative, & An Unswerving Commitment To Putting Due Process & Fairness First — The “Lister-Schmidt Proposal”

 

CALL US CRAZY, BUT . . . . THERE ARE SOLUTIONS TO THE IMMIGRATION COURT BACKLOG PROBLEM THAT WILL ENHANCE FAIRNESS & DUE PROCESS WITHOUT BREAKING THE BANK — It Just Requires Some Imagination, Initiative, & An Unswerving Commitment To Putting Due Process & Fairness First — The “Lister-Schmidt Proposal”

 

The other day I got a call from my good friend and UW Law classmate, retired Wisconsin State Judge Tom Lister. The conversation went something like this:

 

TOM: Schmidt, I’ve been reading about the backlog in your blog — 1.1 million cases! No way it’s going to be solved just by hiring more judges. But, hey, I’m out here living well in retirement, and I’d be happy to help out. And there are hundreds, perhaps thousands of other retired judges throughout the U.S who probably would be willing to pitch in too.

 

ME: Yeah, sounds nice Tom, but I doubt there is any money in the EOIR budget for hiring retired judges. They once claimed they would bring back some of my retired colleagues, but the program doesn’t seem to have gone anywhere.

 

TOM: I don’t need a salary. I’m willing to volunteer! Just pay my incidentals.

 

ME: Well, then there’s this thing called the Anti-Deficiency Act that prevents agencies like DOJ from accepting free services. It would take some kind of statutory waiver . . . .

 

By that time, I felt that I was retreating into just the type of bureaucratic “yes-buts” or “passive yeses” that I used to hate during my days as a bureaucrat right up until the present.

 

But, what if Congress created an independent Immigration Court free of the “bureaucratic no-nos” that plague the DOJ bureaucracy? And what if the system were run by actual sitting judges committed to using “teamwork and innovation” to solve problems, institute “best practices,” and aspire to become “the world’s best tribunals” guaranteeing fairness and Due Process for all?”

 

Maybe we’d have things like this:

 

SENIOR JUDICIAL DUE PROCESS BRIGADE

 

Retired judges of all types would be trained and available to assist the Immigration Courts in dealing with “surges,” retirement waves, changes in the law, and other “emergencies” on a volunteer basis.

 

DIVISION A: RETIRED IMMIGRATION JUDGES

 

They could be trained to handle all types of immigration cases on a volunteer “as needed” basis.  This would be very similar to the Senior Judge Corps used by other Federal Courts.

 

DIVISION B: RETIRED JUDGES FROM OUTSIDE THE IMMIGRATION BENCH

 

They could be trained to handle certain types of Immigration Court adjudications that are primarily fact-findings that would require some basic knowledge of immigration law but not the degree of specialized expertise that might be expected of a permanent Immigration Judge. Like “Division A” they would be volunteers, requiring expense reimbursement only.

 

Obvious candidates for “Division B Judges:”

 

  • Cancellation of Removal all types where basic eligibility is uncontested and the only issues are hardship and discretion;
  • Bonds where there are no statutory eligibility issues;
  • Adjustments of Status;
  • “Voluntary Departure Only” cases;
  • Master Calendars;
  • Withdrawals and other stipulated cases;
  • Status Conferences;
  • In Absentia dockets.

 

 

ASYLUM OFFICER MAGISTRATE BRIGADE

 

Put the Asylum Officers under the Immigration Courts where they can be used for a wide range of adjudications much like U.S. Magistrate Judges. This would include, but not be limited to, asylum, withholding, and CAT cases. Another obvious candidate would be certain Non-Lawful-Permanent Resident Cancellation of Removal cases.

 

Since the existing USCIS program would be folded in, the expenses of this conversion would be minimal and the possibilities for improving justice, due process, and efficiency limitless!

 

This is by no means the full extent of what could be done to improve the delivery of justice and fairness in the U.S. Immigration Courts.  But, to let the “creative juices and efficiencies flow,” it will require Congress to move the Immigration Courts out of the DOJ and create an independent court where judges are free to work as a team and with “stakeholders” to solve problems, rather than creating new ones or aggravating existing ones.

PWS

02-14-19

 

 

READ (RETIRED) JUDGE THOMAS LISTER’S “Personal pledge for planetary peace!”

http://lacrossetribune.com/opinion/columnists/article_424899f4-67e5-59b6-92dc-dc9e41c8e67a.html

Judge Lister writes in the LaCrosse (WI) Tribune:

“Our planet is beset with war, terror, hunger, disease, poverty and environmental degradation which must end soon if future generations are to survive and progress.

Perpetuating hatred, ignorance, bias, prejudice, selfishness, greed, fear, extremism, jealousy and misunderstanding from generation to generation perpetuates the world’s differences, disasters, degradations and difficulties.

Without an immediate, dramatic change of direction individually and collectively, our human race will come to where we are presently — and suicidally

— headed.

I and many others doubt whether individual actions or reactions to the planet’s universal problems can or will make any difference.

I personally pledge that I will forever peacefully condemn, resist and denounce killing, terror, war, crime, prejudice, vengeance and the loss or limitation of basic human rights – including, but not limited to:

  • The right to adequate food, shelter, clean water, clean air and clothing.
  • The right to health care.
  • The right to education.
  • The right to work for a living.
  • The right to worship one’s highest spirit and/or creator.
  • The right to a homeland free of challenge or aggression.

I will work to promote remedial action by those who have too much in favor of those who have too little; and, by those who can offer aid to those who need help.

I will not tolerate — without my active peaceful protest and, where necessary my peaceful civil disobedience — any government action that violates these covenants.

I support one planetary, plenary police power, consisting of fair representation from all nations, which will enforce the principles of universal law and peace through a multinational force governed by the United Nations.

I support one World Court, representative of all nations, to interpret and administer its universal rights and laws and principles.

I support a renewed and more responsible United Nations, free of veto power vested in any single nation or select group of nations.

Any declaration of war implied by any nation, government, individual or organized entity, other than the United Nations, shall be a declaration against all earth’s people; and, I will oppose any such aggressor.

I will look anew at earth’s environmental status as well as my own in light of the damage humankind has wrought; and, I will endeavor to waste no resource, to conserve energy and prevent pollution of air, water and soil. I will try to use no more energy than is necessary to support my family.

I will teach my children and grandchildren principles of universal tolerance, love, equality, understanding, compassion, sympathy, empathy and freedom. I will teach the lessons of history and world events that have led us to this perilous time. This promotion of universal principles has become so necessary to the survival of humankind and the preservation of our earth.

I pledge to end the exposure of children to violence, including that portrayed in the media and I will also reject such portrayals myself.

I will pray for all those who are asked to understand this simultaneous planet-wide denouncement of violence and killing and vengeance even though they and their loved ones have been brutalized and victimized; and, I will promote the message that we must altogether say “enough” to violence, terror and killing. I believe earth’s present generations must agree to forgive terrible past and present wrongs and forego future wrongs and revenge.

I will respect and work to protect human differences in religion, culture, color, nationality, language, gender, age, ethnicity and political beliefs.

This dramatic and immediate change, so essential to preserving the planet and its people, will not come about through slow generational purging of the problems and prejudices that plague our earth.

We must act together to adopt sweeping, global change that will provide all people with the ultimate promise and hope, that we can together act to change tomorrow. I pledge to act responsively and responsibly to achieve this end.

I support a general amnesty for those who have engaged in conflict, so long as they terminate armed conflict and lay down their arms forever.

We must redirect worldwide economic resources from weapons and armies, fear and terror, to provide world sustenance, health, universal education and other basic human rights and needs for all. I will work for the preservation of the earth’s natural resources and development of clean renewable alternative energy to sustain future life on the planet.

I will urge others to take this pledge including my governmental representatives at all levels, my religious leaders, my nation’s military leaders, educational leaders and corporate leaders.

If we support these changes, there can and will be peace on earth and preservation of our planet and protection and perpetuation with dignity for humankind.

Thomas Lister is a trial lawyer, former Jackson County district attorney and circuit court judge. He is retiring from Fitzpatrick Skemp & Associates, La Crosse.

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

Judge Thomas “Tom” Lister and I were members of the Class of 1973 at the University of Wisconsin School of Law. (No Orange Bowl — or indeed any Bowl — victories in those days — we were happy if the Badger Football team won a game. But, we faithfully attended the games in the “law student section” and the “fifth quarter” afterward!) Indeed, Tom, his wonderful wife Sally, my wife Cathy, and I were very close friends throughout those three years and have remained in touch ever since. Tom and I were members of the same “study group.”

Like me, Tom has seen the U.S. legal system from a number of different vantage points — as a prosecutor, a judge, and a private practitioner. Several years ago at our 40th UW Law Reunion we had an interesting discussion of the failures of the traditional law enforcement approach to drug and opioid use, a particular problem not only in Northern Virginia but in the largely rural Jackson Country Wisconsin where Tom was a Circuit Judge and, some years prior to that, the District Attorney.

I find Tom’s words and thoughts inspiring, particularly at a time when the level of political and intellectual discourse in our country is often quite the opposite, to say the least. I particularly appreciate his message about tolerance and the recognition of basic universal human rights — a subject which has concerned me throughout my legal career.

PWS

01-04-18