"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“Good enough for government work” might be the mantra for Garland’s EOIR — but, it doesn’t ‘cut it’ with Article III Courts, even the conservative, non-immigrant-friendly 5th Circuit!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
“Francis Zamaro-Silverio petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of cancellation of removal and voluntary departure. The BIA held that Zamaro-Silverio had been convicted of a crime involving moral turpitude (“CIMT”) and thus found her ineligible for those forms of discretionary relief. Because the BIA did not perform the proper analysis, we grant review, vacate, and remand for determination of whether Zamaro-Silverio’s conviction was for a CIMT. … The BIA found that Garcia-Maldonado controlled the outcome for Zamaro-Silverio. But in the wake of Mathis, that analysis is incorrect. The proper focus is now on the minimum conduct prohibited by the statute, not on Zamaro-Silverio’s particular actions. The minimum conduct that can trigger liability under ZamaroSilverio’s statute of conviction is the failure to remain at the scene of the accident and provide one’s name and other information. See Tex. Transp. Code § 550.021(a)(4). Thus, Zamaro-Silverio’s deportability hinges on whether failure to share information is a CIMT. Villegas-Sarabia, 874 F.3d at 877. Garcia-Maldonado does not reach this question, and, similarly, the BIA did not answer it. Given that “our ordinary rule is to remand to ‘giv[e] the BIA the opportunity to address the matter in the first instance in light of its own expertise,’” we go no further. Negusie, 555 U.S. at 517 (quoting Orlando Ventura, 537 U.S. at 17) (alteration in original). Therefore, the petition for review is GRANTED. We VACATE and REMAND to the BIA with instruction to determine whether the failure to share information under § 550.021(a)(4) is a CIMT.”
The Fifth Circuit precedent that the BIA failed to apply here, Villegas-Sarabia v. Sessions, 874 F.3d 871, 877 (5th Cir. 2017), was issued in 2017, before this respondent was even convicted. Yet, the BIA erroneously applied the pre-2017 version of Circuit law to deny her application. How is this competent adjudication from what is supposed to be a “specialized court” of expert adjudicators?
Remarkably, the BIA was even given a chance to correct its obvious error through a motion to reconsider filed while this petition for review was pending with the Circuit. Astoundingly, the BIA denied the motion to reconsider and “stuck with” a decision that violated Circuit precedent. What a way to (not) “run the railroad.”🚂
The Fifth Circuit panel in this case, Judge Jerry E. Smith (Reagan) (opinion), Judge Edith Brown Clement (Bush II), and Judge Cory T. Wilson (Trump) are all GOP appointees, among the most conservative Federal Judges in America — right out of “The Federalist Society Hall of Fame!”
Even the most far-right GOP Federal Judges have a “bottom line” that the BIA can’t manage to remain above.
Somewhat ironically, Dem Attorney General Merrick Garland, once nominated for the Supremes by President Barack Obama, appears to have no such bottom line for the BIA’s sloppy, unprofessional “any reason to say no and deny” judging! Unfortunately, it’s symptomatic for a Dem Administration that just doesn’t care very much when it comes to due process, fundamental fairness, and justice for migrants! Garland’s tolerance for bad judging is also clogging the Circuit Courts with unnecessary litigation generated by the BIA’s substandard performance!
Although he famously has reassigned most of the “high profile” work of the DOJ to various “Special Counsel,” curiously, Dem AG Merrick Garland, a former Article III Judge, doesn’t seem to have the time or the skills to fix the festering due process, bias, quality control, and professionalism problems in “his” wholly-owned “court” system — EOIR! So, the systemic injustice and chaos continue, unabated! PHOTO: Wikipedia Commons
When Judge Jerry E. Smith and his colleagues have the integrity to stand up for the legal rights of a respondent, even one who has committed a crime, but a Democratic AG doesn’t have the courage to bring fair and professional judging and quality control to EOIR (after two years on the job), progressives and advocates ought to be asking what the heck they voted for in 2020? I doubt that it was this awful, entirely preventable, mess!
Don’t just complain about the awful mess @ EOIR! Get on the bench and do something about it! Public Domain
Excerpts:
Now, those of you who read my blog immigrationcourtside.com or have heard me speak before, or both, know that I am an outspoken critic of the last four Administrations’ gross mismanagement and misdirection of our Immigration Courts. So, you might well ask why I am here recruiting YOU to become part of a court system that I have consistently lampooned and characterized as dysfunctional, FUBAR, and badly in need of long-overdue reforms.
A better question might be why AG Garland, VP Harris, Deputy AG Lisa Monaco, and Associate AG Vanita Gupta AREN’T here today actively recruiting you to apply to become Immigration Judges in their system. It’s a hugely important court, perhaps the largest in the Federal Government, that cries out for excellence, practical immigration scholarship, and badly needs a much more diverse, representative, and expert judiciary to achieve equal justice for all in America.
The short answer is because I CARE, and THEY DON’T! I have a vision of a model court system unswervingly dedicated to due process, fundamental fairness, great practical scholarship, best judicial practices, fantastic public service, and equal justice for all! THEY DON’T!
After two largely fruitiness and frustrating years of the Biden Administration’s bungling immigration and social justice mis-steps, it’s painfully clear that the needed management, personnel, operational, and expertise reforms needed at EOIR AREN’T going to come from above.
But, if you have been in Immigration Court and thought “Hey, there is a better, more informed, more efficient, more just way to run this railroad, why isn’t it happening,” THIS is YOUR chance to get on board and change the direction of EOIR and the millions of lives and livelihoods that depend on it! See that the next generations of dedicated immigration lawyers won’t face some of the unnecessary and counterproductive roadblocks and bad experiences that you have had to deal with in seeking justice for your clients before EOIR!
. . . .
Not surprisingly, asylum grant rates dropped precipitously during the Trump years. Although they have rebounded some under Biden, they still remain below the 2012 levels. It’s certainly not that conditions have substantially “improved” in major “sending countries.” If anything, conditions are worse in most of those countries than in the years preceding 2012.
So, if the law hasn’t changed substantially and country conditions haven’t improved, what has caused regression in asylum grant rates at EOIR? It comes down to poor judging, accompanied by inadequate training, too much emphasis on “churning the numbers over quality and correctness,” and a BIA that really doesn’t believe much in asylum law and lacks the expertise and commitment to consistently set and apply favorable precedents and end disgraceful inconsistencies and “asylum free zones” that continue to exist.
Some of the most disgraceful, intentional asylum misinterpretations by Sessions and Barr now have been reversed by Garland. Unfortunately, he failed to follow-up to insure that the correct standards are actually applied, particularly to recurring circumstances. It’s one of many reasons that the Biden Administration struggles to re-establish a fair and efficient legal asylum system at the Southern Border — notwithstanding having two years to address the problems!
But, it doesn’t have to be this way! Recently, as I noted earlier, a number of notable “practical scholar experts” have been appointed to the Immigration Judiciary. When such well-qualified jurists reach a “critical mass” in the expanding EOIR, systemic changes and improvements in practices and results will happen.
The “dialogue” among Immigration Judges from government backgrounds and those from the private/NGO sector will improve. Lives will be saved. Life-threatening inconsistencies and wasteful litigation to correct basic mistakes at all levels of EOIR will diminish. The EOIR system will resume movement toward the former noble, but now long abandoned, vision of “through teamwork and innovation, being the world’s best administrative tribunals, guaranteeing fairness and due process for all!”
. . . .
So, warriors of the NDPA, check out USA Jobs, make those applications for EOIR judgeships! Storm the tower from below! Make a difference in the lives of others, stand up for due process and fundamental fairness for all persons, and help save our democracy! Become better judges for a better America! If not YOU, then who?
You can watch my full webinar here:
AILA Webinars shared the following meeting recording with you.
Topic: How to become an EOIR judge
Date: Jan 11, 2023 11:42 AM Eastern Time (US and Canada)
Jay Kuo American Author, Producer, CEO of The Social Edge PHOTO: FacebookSome righty judges get all the way to the Supremes while remaining indifferent to the wrongful suffering of humanity from their bad judging!y Photo by David R. Badger, Creative Commons
Time and again, the current Supreme Court has waded into what should be a political fight, using its broad power to effectively freeze or rewind the clock. In so doing, it has often locked in the worst possible outcome, then leveraged its busy and lengthy docket to unacceptably extend that outcome.
It did this with the Texas vigilante enforced abortion law, allowing a facially unconstitutional restriction to remain on the books and actively in place, effectively shutting down reproductive health services across the state. It did it again by staying lower federal court orders that had struck down unconstitutional racial gerrymanders in the South, permitting illegal maps to disenfranchise African American voters. That was at least four seats that should have been minority opportunity districts—enough to cost the Democrats the House majority. And on Tuesday, SCOTUS pulled this trick once more, this time leaving in place a draconian Trump-era pandemic immigration ban, broadly known as Title 42, that the Biden administration wanted gone and that a federal judge already had ordered lifted.
In so doing, the Court further revealed itself as precisely what it should not be: a political powerbroker and, as even conservative Justice Neil Gorsuch noted in dissent, a group of “policymakers of last resort.”
What’s the story behind Title 42, and how does this most recent ruling get things upside down? What will it mean for the thousands of desperate migrant families camped in dangerous conditions at the border? And what should we expect next from Congress and the White House? I explore these and some key takeaways from the decision.
. . . .
It is next-level hypocrisy that red state leaders, who during the pandemic eschewed all manner of basic preventative health measures at great cost to human life, should now champion a policy that cites the virus as the reason to expel millions of theoretical carriers. The idea that Mexico was somehow a greater vector for disease and infection than the red states of America is also both deeply cynical and plainly counterfactual.
From a policy standpoint, the notion that certain states can claim they would suffer special harm from the lifting of Title 42 and that this somehow gives them standing to stop the government in its tracks threatens to upend our entire federal system. In every policy decision by federal authorities there are winners and losers, from taxation to infrastructure spending to rules around land and water use. Immigration, and the states which allegedly are most affected by it, should receive no special dispensation or consideration. Giving these states a voice and standing in this instance sufficient to hamstring the government would be premised on nothing but the Court’s apparent political priorities, and not sound federal principles.
Finally, the crisis at the border truly requires a bipartisan political solution, but no comprehensive immigration reform bill has passed Congress since 1986. Today, the “problem” of immigration has become a useful political tool for Republicans around which to rally their base and with which to fundraise. Unsurprisingly then, they appear to have no real interest in actually trying to solve the problem through legislation. As Secretary Pete Buttigieg has observed, this will remain the case so long as the problem of immigration is more useful to them than the solution.
The upshot is, we likely will continue to see misery at our border and buses of migrants sent by governors Abbott of Texas and DeSantis of Florida dropped off in liberal bastions like Martha’s Vineyard or in front of Vice President’s Harris’s home in D.C. The Biden Administration will still continue to work quietly behind the scenes to lessen the impact of Title 42 and to argue in court for ending the policy. But whether SCOTUS will relinquish its de facto policymaking role to the proper branches of government remains unclear.
Jay Kuo is the CEO of The Social Edge, a digital publishing and social media company based in New York City. Jay is head of “Team Takei,” managing engagement with Star Trek legend George Takei’s 23 million Facebook, Instagram and Twitter followers. Jay is also the composer, lyricist and co-librettist for the Broadway musical Allegiance as well as the librettist on the Broadway-bound Indigo, the first musical to feature and star a teenage girl on the autism spectrum. Jay is also a two-time Tony-winning co-producer for the hit musical Hadestown and the critically acclaimed, epic play The Inheritance.
Apart from his Broadway and social media work, Jay is a published author, an avid political blogger, and a partner in Gaingels LLC, the nation’s largest private investment syndicate. While he worked as an attorney, Jay was an appellate litigator admitted to practice before the Ninth Circuit and U.S. Supreme Court.
Jay has served on the boards of the Northern California ACLU and the Bay Area Lawyers Individual Freedom, and he argued the first Ninth Circuit challenge to the military’s “Don’t Ask, Don’t Tell” policy. Jay currently serves on the national board of the Human Rights Campaign, the nation’s oldest and largest civil rights organization serving the LGBTQ+ community.
***********************
Read Jay’s complete, very clear and understandable, analysis of the Title 42 charade at the link.
These ivory tower right wing zealots in robes exempt themselves from the human pain and suffering that their horrible judging causes. Judges are supposed to solve problems. This gang makes them worse!
Lets’ repeat it again: The idea that this “esoteric issue,” raised at the last second, by corrupt GOP AGs who aren’t even parties to this case, claiming largely phantom “harm” that pales in relation to the well-documented life-threatening harm suffered by legal asylum seekers every day, merits an indefinite stay that inflicts yet more unconscionable harm, even death, upon the most vulnerable among us, is as illegal as it is patently absurd.
That it was imposed by five judges on our highest Court, who are suppose to uphold our Constitution and individual rights against government overreach is something that should be of grave concern to all who believe in American democracy, particular future generations who will have to live with the shame and damage inflicted by these out of touch far-right jurists!
Better judges for a better America! Why should judges who have never participated in the “retail level of our justice system” — by representing individuals in our broken, biased, and dysfunctional Immigration Courts — be ensconced on our highest Court and given life or death power over persons they wrongfully treat as less than human and whose legal and human rights they so shamelessly deny?
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
Weekly Briefing
This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
This gathering will bring together existing universal representation projects as well as groups considering starting/supporting new programs to reflect on best practices, adapting models while seeking to end detention, and ways to expand universal representation. The deadline to register for virtual attendance is tomorrow, October 25, 2022.
CNN: There were 227,547 migrant encounters along the US-Mexico border in September, up 12 percent from the previous month. The sharp increase in migrants from Venezuela, Cuba, and Nicaragua contributed to the uptick.
NYT: The number of Venezuelans entering the United States illegally dropped from about 1,200 a day to 150 in the first days after the Biden administration rolled out the new policies.
Reuters: The Ethiopian military and allies including troops from neighboring Eritrea have been battling forces from the northern region of Tigray on and off for two years. The conflict has killed thousands, displaced millions and left hundreds of thousands on the brink of famine.
The Hill: The Coast Guard stopped 185 Cubans on Friday, 94 on Saturday and 40 on Sunday. In total, the service says it has intercepted 921 Cubans since Oct. 1.
AP: Molina was among 13 migrants who recently arrived in the U.S. who agreed to share documents with The Associated Press that they received when they were released from U.S. custody while they seek asylum after crossing the border with Mexico. The AP found that most had no idea where they were going — nor did the people at the addresses listed on their paperwork.
CNN: It has been an endless cycle since President Joe Biden took office, according to multiple administration officials and sources close to the White House. Agency officials dream up a plan but then struggle to get White House approval, even as the problem compounds and Republicans step up their criticism. See also Immigrant advocates feel abandoned as they stare at Biden’s first-term checklist.
TRAC: According to new data obtained by TRAC through Freedom of Information Act (FOIA) requests, 480,301 people have been enrolled in ICE’s electronic monitoring program known as Alternatives to Detention (ATD) between August 2020 and June 2022. Many of these individuals, about 196,000, were previously active in ATD but have since ceased to be monitored under ATD, while 284,000 immigrants were still in ATD as of the end of June.
TRAC: As of the end of September 2022, Immigration Court judges dismissed a total of 63,586 cases because Department of Homeland Security officials, chiefly Border Patrol agents, are not filing the actual “Notice to Appear” (NTA) with the Immigration Court. Without a filed NTA, the Court has no jurisdiction to hear the case.
GBH: Police in New York arrested about 57,000 unlicensed drivers a year before state lawmakers narrowly approved the Green Light Law in 2019, making most immigrants eligible for licenses regardless of their legal status. In 2021, those arrests declined to about 30,000 and are on a similar pace for this year, according to records obtained by GBH News from the New York State Unified Court System.
Block Club: As a major city that attracts immigrants, Chicago specifically has been struggling to support the recent influx of asylum seekers. After dealing with cuts under the Trump administration and then the COVID-19 pandemic, immigrant serving organizations’ resources were already strained before the war in Ukraine and the U.S. withdrawal from Afghanistan and subsequent Taliban takeover sent thousands of refugees and asylum seekers to Chicago. The recent arrival of migrants from Texas has only added to the strain on organizations’ resources, including legal services and representation.
LexisNexis: He argues that the immigration judge (“IJ”) applied the incorrect legal standard in assessing whether he would more likely than not be tortured with the “consent or acquiescence” of the Honduran government, and that the BIA erred in its review of the IJ’s decision. He also argues that the BIA failed to consider whether the Honduran government would likely torture him and whether the MS-13 gang is a de facto government actor. We agree that the agency erred in these respects, and we therefore grant his petition for review, vacate the order of the BIA to the extent it denied him CAT relief as to Honduras, and remand for further proceedings consistent with this opinion.
CA1: We thus remand for the BIA to consider in the first instance whether Chavez’s proposed social group satisfies the requirements for constituting a particular social group under the INA to which he belongs. We express no opinion as to the merits of that issue other than to emphasize that the BIA cannot reject such a group based solely on its determination that current or former gang members cannot form a particular social group.
LexisNexis: The plain language of the statute, coupled with the reasoning of Mahn and Ramirez-Contreras, persuades us that the Pennsylvania felony fleeing statute does not qualify as turpitudinous. While the failing to stop for a police officer while crossing a state line is conduct that may put another in danger, it does not necessarily do so. The agency therefore erred in its conclusion that King was convicted of a CIMT.
LexisNexis: We conclude: (1) the record in this case compels the conclusion that two of De Leon’s attackers were police officers during a July 2011 incident; (2) De Leon showed acquiescence on the part of the Guatemalan government with respect to that incident because government officials— namely, the two police officers—directly participated in the incident; and (3) the record indicates that the IJ and BIA’s conclusion that De Leon is not likely to be subjected to torture with government acquiescence if returned to Guatemala disregards several important circumstances pertinent to evaluating the likelihood of future torture. In light of these errors, we grant the petition and remand for the agency to reconsider De Leon’s application for relief.
Law360: The state of Texas on Wednesday agreed to drop its challenge to a provision of the pandemic-era Title 42 policy which exempted unaccompanied minor migrants from being expelled from the U.S. during the COVID-19 pandemic.
Law360: An Illinois university professor and students can’t stop the Biden administration from enforcing a Trump-era policy barring student visas to Chinese nationals who are connected to any entity in China that supports its “military-civil fusion strategy,” a federal judge has ruled, denying the plaintiffs’ bid for a temporary restraining order.
Law360: A class of foreign-born military recruits who sought $10 million in attorney fees after winning back their expedited path to naturalization two years ago have settled for $2.75 million in the interest of conserving resources and avoiding further litigation risks.
AIC: Several legal services organizations filed a lawsuit today against Immigration and Customs Enforcement (ICE) for unlawfully preventing attorneys from communicating with immigrants detained in four detention facilities in Florida, Louisiana, Texas, and Arizona.
USCIS: U.S. Citizenship and Immigration Services is extending certain COVID-19-related flexibilities through Jan. 24, 2023, to assist applicants, petitioners, and requestors.
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added. If you receive an error, make sure you click request access.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
But immigrant advocates note that some of their demands aren’t contingent on Congress or the courts, which makes it all the more exasperating as to why the administration has failed to deliver.
Some told POLITICO they simply wanted to see the administration remedy the harm caused by the Trump administration’s family separation policies. Others want to see follow-up on early proposals to protect immigrant workers in labor disputes.
The administration further angered the community last week when it announced plans to use the Trump-era pandemic policy, Title 42, to expel Venezuelan migrants crossing the border illegally as part of its new humanitarian parole program for them. Advocates decried the expansion of Title 42, which the Justice Department is fighting in court, as a continuation of the Trump “playbook.”
. . . .
The biggest, most significant “unforced error” by the Biden Administration has been the failure to “clean house” at EOIR and to reform the Immigration Courts to be a model of great, scholarly, humane judging, and a bastion of due process, fundamental fairness, and best judicial practices.
The Federalist Society and the Heritage Foundation set forth a successful “blueprint” for a far-right takeover of not only the Immigration Courts, but the entire Article III Judiciary. The Trump Administration adopted and successfully followed it!
By stark contrast, the Dems have failed to act timely and decisively on the one all-important Federal court system that they completely control! EOIR is a system that probably has more impact on the future of America — or whether there will even be a future America — than any court short of the Supremes!
Garland’s dismissive treatment of the informed views of immigration, human rights, and racial justice experts — who have had “hands on” experience with “America’s most dysfunctional courts” (the Immigration Courts) — has undermined our legal system and hamstrung almost every other progressive social justice initiative — from voting rights to abortion!
Garland’s failure to bring in experienced, dynamic, inspirational, respected, “Tier One” progressive practical scholar/leaders — folks like, for example, Dean Kevin Johnson, Professor Karen Musalo, Marielena Hincapie, Professor Phil Schrag, Margaret Stock, Professor Michele Pistone, and Judge Dana Leigh Marks — to clean up EOIR, kick some tail, and create “the best, fairest, most efficient courts in America” — is beyond inexcusable!
Dems are a self-inflicted mess when it comes to immigration — apparently because those “calling the shots” are more “Stephen Miller Lite” than they are Julian Castro and other Democrats who understand the essential importance of immigrants and of standing up for their rights — starting with the “retail level” of American justice.
As one frustrated experienced practitioner recently told me: “Biden’s entire immigration policies are a train wreck. He didn’t take the action he said he would. The practice of immigration law is soul crushing.”
“Soul crushing!” Those words should be a “wake up call” to the “tone deaf” policy honchos in the Administration. It shouldn’t be this way in a Dem Administration that was elected because they promised to do better and to stand up to the lies, myths, and false narratives of the nativist right! Once in power, Dems don’t seem to be able to distinguish between their friends and their adversaries. That’s proven NOT to be a “formula for success!”
For every immigrant/racial justice advocate that the Biden Administration wears down and demoralizes, two “new recruits” for the NDPA will arise, fully energized to keep litigating, winning, and raising hell until due process, human rights, fundamental fairness, and racial justice get some long overdue ACTION. Based on results to date, that means continuing to “beat Garland’s brains out” in court! The talent and creativity is obviously “out here,” not in Garland’s “Halls of (In)Justice!” Given that the “Stephen Miller Group” is also challenging the Administration in court, Garland will eventually find himself doing nothing but litigating immigration issues and getting walloped by both sides!
Meanwhile, as the Administration daily fails on immigration, human rights, and racial justice within the Executive Branch, my mailbox and message box are overflowing with desperate requests from Dem politicos, from Joe, Kamala, Nancy, and Chuck on down, for more donations of money and time. But, once the election cycle is over, our views are ignored, and we are treated as “PNGs.” Meanwhile, those who actively undermined immigrants’ rights and diminished due process are rewarded or retained in key positions where they continue to heap damage on the most vulnerable among us and frustrate their supporters.
Doesn’t seem like a sustainable future for the Democratic Party or for American democracy! But, hey, I’m just a retired Immigration Judge. Maybe my friends in the social justice movement enjoy being treated as “chopped liver” — frozen out and ignored — once they have helped elect Dems.
Republicans boldly “run on the big lie.” Meanwhile, Dems “run from the truth” about immigrants and their all-important role in America’s future! Go figure!
A quote from a recent NY Times article struck me as aptly summarizing the failure of leaders of both political parties to take an honest, creative, and practical approach to the opportunity presented by continuing human migration:
Immigration in the United States is broken, but one side of the fence wants to study the root causes of the problem, and don’t want to see what’s happening right here,” Mr. [John] Martin [deputy director of the Opportunity Center for the Homeless in El Paso] said, squinting beneath the brim of his cowboy hat. “And the other side wants to build a wall which would become a dam and eventually burst.”
Former AG Jeff “Gonzo Apocalypto” Sessions went to the border to preach his “gospel” of anti-immigrant hate, lies, nativist myths, and to “fire up” officials for one of the biggest unconstitutional abuses of prosecutorial authority in modern American history. Indeed, that is when one reporter coined the term “Gonzo Apocalypto” to describe the absolute nonsense spewing from Sessions’s mouth.
Sessions orchestrated a vile “strategy” of family separation from which the victims haven’t yet, and may never, fully recover. Interestingly, he has also escaped accountability.
By contrast, Garland, to my knowledge, has never bothered to visit the border and engage first-hand with the human carnage his failed “courts” and abuse of both the Constitution and asylum law inflict on others. He interacts neither with those outside government trying to uphold the rule of law nor the enforcement officials given “mission impossible.” He absolves himself from observing the effect that his failure to carry out orderly, humane, legally compliant refugee and asylum processing — using existing law rather than extralegal “gimmicks” — has on communities on the border and in the interior.
Sessions was a vile, intellectually dishonest, and immoral leader; Garland is simply a failed and disengaged one. But, the difference might not be readily apparent to most practitioners laboring in the foul trenches of Garland’s dysfunctional “court” system.
From my observation, there are folks out here interested in, and capable of, addressing the opportunities, potential benefits, and challenges presented by the inevitability of human migration in the 21st Century. Most of them, unlike “pontificating politicos,” have, at some point, “walked the walk” with those humans caught up in the migration dilemma, on both sides of the border.
But, leaders of neither party are interested in the constructive ideas and solutions developed within the rule of law that these unusually talented and dedicated individuals can offer. As long as that is the case, the realities of human migration, false promises, racially driven bias, and wildly inconsistent application of justice in America will continue to vex both politicians and the voters who put such “non-problem-solvers” in office!
Many immigration issues are divisive. Protecting dreamers is not. Virtually every poll conducted on the subject finds that Americans of all political persuasions favor granting dreamers some form of permanent legal status, including a path to citizenship. Even Trumpers are on board, surveys show. Faith groups, law enforcement officials, employers, national security experts and other major constituencies besides typical bleeding-heart immigration advocates have urged Congress repeatedly to grant these young immigrants greater legal certainty.
Unfortunately — as is the case on so many issues — Congress has abdicated its responsibility to act. Instead, the executive branch has been tasked with devising temporary workarounds.
In 2012, the Obama administration announced a sort of Band-Aid solution, known as the Deferred Action for Childhood Arrivals (DACA) program. DACA offers some of these young immigrants access to (temporary) work permits and protections from deportation, which must be frequently renewed. Eligibility extends only to those who meet certain age and educational requirements, have lived here continuously since 2007 and pose no threat to public safety, among other conditions.
This program was generally expected to be a stopgap while Congress worked on broader immigration reforms or at least a pathway to citizenship for dreamers; so far, neither has materialized.
[As DACA immigrant program turns 10, legal challenges persist]
In the decade since it was introduced, DACA has weathered multiple legal challenges — including from a coalition of red states led by Texas, as well as attempted repeal by President Donald Trump. For now, the program remains mostly intact while the red-state challenge wends its way through the courts. But DACA’s days look numbered.
. . . .
This is hardly the only immigration issue on which Republican politicians have complained about executive overreach yet been reluctant to exercise their own powers. Other vulnerable, sympathetic populations of immigrants — such as the Afghan allies who were temporarily “paroled” into the United States — are stuck in their own legal limbo unless and until Congress acts.
But it’s always easier for politicians to grandstand over everyone else’s immigration policy choices than to produce solutions of their own.
**********************
Read Catherine’s complete article at the link.
How stupid and cruel is the GOP’s assault on Dreamers? It’s not like most “Dreamers” are going anywhere. After all, there are already about 2 million individuals (not to mention family members, employers, etc.) backed up on Garland’s dysfunctional Immigration Courts. And, under Garland’s misguided leadership, more judges are actually building more backlog!
But, without DACA’s work authorization, those not eligible for other forms of relief (e.g., asylum, cancellation of removal) will lose their authorization to work. Since many are in critical or essential jobs with employers who can’t afford to be out of compliance with Federal laws, it’s reasonable to assume that Dreamers would lose those jobs. That means that many will have to take lesser jobs in the substantial “underground economy” operating in the U.S., largely as a result of the GOP’s obstinance on sensible immigration policy.
If that appears stupid, it’s because it is! But, what else is new with the GOP’s cruel, xenophobic, and unrealistic approach to immigration.
It’s remarkable that out of touch righty judges on the 5th Circuit, whose jobs and existence actually depend on the systemic non-prosecution of most Federal offenses, would actually have the gall to issue their off the wall ruling dumping on Dreamers! In reality, by necessity, only a small number of violations of Federal statutes are prosecuted. See. e,g., https://prisonprofessors.com/federal-crimes-to-prosecute-or-not/.
The Fifth Circuit’s “off the wall” apparent theory that Federal officials lack discretion to redirect prosecution resources toward the most serious offenders is pure “Federalist Society political poppycock!” It’s particularly out of bounds to critique the Feds for taking steps to insure that such discretion is exercised uniformly and reasonably, rather than arbitrarily and capriciously.
I had lots of experience with “PD” programs over four decades in Federal service. The DACA program is far and away the premier “model” program for the effective and rational exercise of PD.
The major impediment to the rational immigration law and policy adjustments America needs is today’s nativist-driven GOP. Unless and until enough American voters wise up and throw the GOP out at all levels, America will not achieve it’s full potential!
As recent polls haveshown, Americans’ confidence in the Supreme Court is at an all-time low, which presumably has something to do with the decision by the Court’s conservatives to inflict their medieval ideas about bodily autonomy on the country and end the national right to an abortion in June. Might it also have something to do with one of the justice’s spouses reportedly attempting to overturn the 2020 election and another securing his lifetime appointment without actually being properly vetted by the FBI? Yes, sure. But the biggie is no doubt the overturning of Roe v. Wade. (No, really: You don’t have to be a constitutional law expert to figure this out, seeing as a majority of Americans think abortion should be legal in all or most instances.)
Justice Elena Kagan—who happens to be one of the few people on the Court who doesn’t believe half of the population should be treated like second-class citizens—recently pointed this out. At a July judicial conference in Big Sky, Montana, she told an audience: “If, over time, the Court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.” Earlier this month, while speaking on a panel at Northwestern University’s Pritzker School of Law, she declared that a court is legitimate “when it’s acting like a court,” and that it’s a problem when justices attempt to impose their personal preferences on society. And last week, she made similar remarks at Salve Regina University in Newport, Rhode Island, saying that throughout the Court’s history, “The very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions. The thing that builds up reservoirs of public confidence is the Court acting like a court and not acting like an extension of the political process.”
Kagan’s comments don’t appear to be sitting very well with certain male justices. As Chief Justice John Roberts told a judicial conference in Colorado Springs, “Simply because people disagree with an opinion is not a basis for questioning the legitimacy of the Court.” But it was Samuel Alito’s response that was the most creepy, given the very clear problem he has has with women.
In a comment to The Wall Street Journal, the archconservative said: “It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the Court is becoming an illegitimate institution or questioning our integrity crosses an important line.” In other words, he wants Elena Kagan to shut her liberal mouth, which is not only some anti-free-speech bullshit but a convenient way for him to ignore the fact that he shares a large portion of the blame for the widely held view that the Court has no integrity.
Unfortunately, Alito’s comment to the Journal shouldn’t surprise many people who’ve kept up with his work. Not only did he author the opinion overturning Roe v. Wade in June, but he gleefully noted that his inspiration for doing so was a 17th-century English jurist who supported marital rape and had women executed for witchcraft. Later, after a 10-year-old rape victim was denied an abortion in her home state, Alito was doing comedy routines about taking away a pregnant person’s right to choose.
Of course, let’s not forget the other justice who’s done his part to erode confidence in the Supreme Court
. . . .
***********************
Alito’s brand of “justice” harkens back to glorious days of yore when all-male judges had a range of methods for dealing with uppity women who thought they were entitled to control their own bodies and lives! — Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Read the rest of The Levin Report and subscribe at the above links.
Yesterday, new Justice Ketanji Brown Jackson was invested. As I’ve observed before, after the niceties and handshakes, her right wing extremist GOP colleagues will return to their chambers and continue to plot ways to bend and distort the law to dehumanize, disenfranchise, and demean Justice Brown Jackson, others like her, and all of the genuine American values she represents.
Lawrence Tribe’s tweeted critique of Alito’s disingenuous nonsense (see, full article) is “spot on:” “It’s politically agenda-driven decisions that cross the line by eroding the Court’s legitimacy.”
Hon. David Estudillo Washington State Judge Nominee for USDC WD WA PHOTO: YouTube
President Biden’s judicial nominees continue to maintain a truer representation of America. Judge David Estudillo, nominated for the Western District of Washington, would be only the second Latino judge to ever serve on that court. Confirming Judge Estudillo moves us toward a future where all people see themselves reflected on the federal bench. Can you help us urge the Senate to confirm Judge Estudillo?
Judge Estudillo has served as a state court judge on the Grant County Superior Court in Washington for six years. He previously operated his own law firm for 10 years where he represented people seeking asylum, DACA protections, work authorizations, temporary protected status, and citizenship.
His personal and professional experience would bring an important voice to a district that represents more than 1.1 million immigrants and nearly 1 million Latinx people. We must urge the Senate to confirm Judge Estudillo.
On July 15, the Senate Judiciary Committee voted to advance a number of Biden’s judicial nominees who will help restore integrity and fairness to the federal bench after Trump’s devastating conservative overhaul of our courts.
Judge David Estudillo is one of the nominees the committee advanced and one of three nominees currently pending on the Senate floor for the U.S. District Court for the Western District of Washington.
Judge Estudillo’s parents were farmworkers who immigrated to the U.S. from Mexico. If confirmed, he would be the second Latino judge ever to serve on this court. It is crucial that the more than 1.1 million immigrants and nearly 1 million Latinx people in Washington feel that they are represented on the courts by people who share their experiences and identities.
Even if you don’t live in Washington, we can all agree that confirming civil rights lawyers to our courts benefits every single person in the country. Confirming Judge Davis Estudillo moves us toward a future where all people see themselves reflected on the federal bench.
We don’t have billionaire backers like some right-wing media outlets. Half our revenue comes from readers like you, meaning we literally couldn’t do this work without you. Can you chip in $5 right now to help Daily Kos keep fighting?
If you wish to donate by mail instead, please send a check to Daily Kos, PO Box 70036, Oakland, CA, 94612. Contributions to Daily Kos are not tax deductible.
Sent via ActionNetwork.org. To update your email address, change your name or address, or to stop receiving emails from Daily Kos, please click here.
*****************
As I always say: “Better Judges for a better America!” This a step forward, although we still have a long way to go to repair the extensive damage inflicted on the Federal Judiciary by Trump & McConnell.
Moreover, as I will discuss below, one of America’s most important (and readily “improvable”) judiciaries, one completely controlled by the Biden Administration, the U.S. Immigration Court, has actually taken steps backward in terms of progressive appointments under Garland. It’s like a new coach taking over in the 4th quarter of a game his team is losing 48-7 and saying “OK, let’s spot them another 17 points before we start playing to win!” Incredible, yet, sadly, true!
As the latest census shows an increasingly diverse America, the Article III Federal Judiciary remains an embarrassing backwater of “non-diversity.” This was intentionally aggravated by Trump & McConnell who, as noted above, elevated primarily White ultra right wing men, many with thin or questionable qualifications, to the Federal Bench!
As stated above:
It is crucial that the more than 1.1 million immigrants and nearly 1 million Latinx people in Washington feel that they are represented on the courts by people who share their experiences and identities.
Evidently, AG Merrick Garland and his team @ DOJ haven’t gotten that message. So far, Garland’s appointments to the Immigration Court, and the composition of his BIA, look more like Stephen Miller’s, Billy Barr’s, and Jeff “Gonzo Apocalypto” Sessions’s “skewed whitewashed vision” of America than they do the real America. That’s particularly true when you consider the American communities whose lives and futures are existentially affected (primarily adversely) by substandard and biased EOIR decisions that continue to be cranked out under Garland. This is despite a few moves by Garland to “kill off” the most horrible of the many bad precedents cranked out by the AG and the BIA during the Trump regime.
Judge Estrada sounds like just the type of individual that Garland should be appointing to theU.S. Immigration Court and the BIA. Compare Judge Estrada’s experience, qualifications, and “real life” background and human engagement with the lackluster profiles of Immigration Judges recently appointed by Garland and with many of those appointed to the Immigration Court and the BIA over the past two decades.
There are plenty of diverse, extraordinarily talented, courageous, practical experts out there in the NDPA to reform and improve the EOIR Judiciary at all levels! Many haven’t applied in the past (or have had their applicants rejected in favor of lesser-qualified candidates) because of the White Nationalist, xenophobic, nativist tone set by Sessions and Barr. Indeed, I spoke over the weekend to one of the leading progressive immigration/human rights experts in America who felt that way. Obviously, I encouraged that “NDPA superstar” to submit the applications — not just for EOIR but also for the Article III Judiciary which also needs to get its act together on human rights, immigration, and racial justice.
Garland & team need to reform and improve the selection criteria, involve outside expert input, and then actively recruit the “best and the brightest” from the NDPA to remake and elevate the Immigration Judiciary! As I have mentioned before, my colleagues in the Round Table and I have done more outreach, cajoling, inspiring, and recruiting among the progressive immigration and human rights community to apply for EOIR jobs than have those at DOJ and elsewhere in the Administration whose job it should be to do just that! It’s ridiculous, and it’s wrong!
No wonder things continue to be an ungodly mess at EOIR despite mountains of blueprints, action plans, and other readily achievable reform recommendations and proposed improvements produced by practical experts in the immigration/human rights/racial justice community! The Immigration Judiciary cries out for diverse, progressive, talented, practical scholar “role models” drawn from the NDPA!
Lucas Guttentag, are you listening somewhere out there? Don’t get co-opted by the DOJ bureaucracy that overall failed to stand up to Trump and his gang of insurrectionists! Don’t let the new leadership at DOJ “de-prioritize or back burner” essential, long overdue, achievable EOIR reforms! Expose “Obamathink revolution by evolution” as the ridiculous and dangerous nonsense that it is (and always was)! Fight for your ideals, speak out, and shake up this disastrously broken and unfair system with the progressive change we need! At this point in your distinguished career, what do you have to lose? Those who consciously chose “not to rock the boat” at EOIR in the past, when human lives, due process, and human dignity were at stake, now share in the responsibility for its sinking!
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” — Some Life-tenured Federal Judges abuse their privileged positions to insure that this is what “due process” will look like for asylum seekers of color! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
Here’s the decision from U.S. District JudgeMATTHEW J. KACSMARYK in Texas v. Biden:
Judge Kacsmaryk was appointed to the bench by Trump & McConnell in 2019. He is a former Federal prosecutor, deputy general counsel of a right wing religious group, and member of the Federalist Society. His nomination was (obviously unsuccessfully) opposed by more than 200 prominent civil rights, religious tolerance, and human rights groups.
Here’s an excerpt from their letter in opposition addressed to the Senate:
On behalf of The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations committed to promoting and protecting the civil and human rights of all persons in the United States, I write in strong opposition to the confirmation of Matthew Kacsmaryk to be a U.S. District Judge for the Northern District of Texas.
Nominees to the federal courts must be committed to respecting the law, Constitution, and core American values of justice, fairness, and inclusivity. Mr. Kacsmaryk does not meet this standard. He is an anti-LGBT activist and culture warrior who does not respect the equal dignity of all people. His record reveals a hostility to LGBT equality and to women’s health, and he would not be able to rule fairly and impartially in cases involving those issues.
Interestingly, the letter was signed by none other than Vanita S. Gupta, then President & CEO of the Leadership Conference on Civil and Human Rights and currently the Associate Attorney General of the U.S.
Gupta and her colleagues had Judge K “pegged” as an unqualified righty bigot then! But, with the lineup currently in place at the 5th and the Supremes, it remains to be seen whether there is any effective short-term remedy for his grotesque abuses of power and human rights.
Judicial appointments are important! Maybe it’s time for Gupta and others at DOJ to treat Immigration Judge and BIA appointments as such!
🇺🇸Due Process Forever! Better Federal Judges for a better America!
Paulina is a former Arlington Immigration Court intern and yet another “charter member of the NDPA” who is doing great things and changing the future of American Justice for the better. Educator, litigator, practical scholar, leader, inspirational humanitarian, all around nice person, and future Federal Judge, that’s Paulina!
“Tune in” tomorrow night and compare the bright future of due process, fundamental fairness, equal justice for all, ethical behavior, and practical applied scholarship with the ugly tone-deaf, intolerant, and ethics-free rant delivered to the Federalist Society by Justice Sam Alito last week. Alito accurately represented the unjustified grievances of the unreasonably embittered dark forces currently promoting a dysfunctional Federal Judiciary that failed as a body to stand up to the cruel, unconstitutional, racist-driven, authoritarianism of the now-defeated Trump regime.
Those are judges who shirked their constitutional and ethical duties and disgracefully embraced the regime’s White Nationalist driven invitations to “Dred Scottify” (dehumanize) large segments of society including African American and Latino voters, immigrants, asylum applicants, children, union members, etc. There is no excuse for such performance from judges who are supposedly insulated from political pressures by the unique privilege of life tenure.
Life tenure is life tenure. So, Alito & his arrogantly out of touch, anti-democracy, far-right buddies aren’t going anywhere soon.
But, it is essential to start putting the faces of a elitist, intentionally unfair, backward-looking, and intolerant society like him “in the rear view mirror” and start actively cultivating for our Federal Judiciary the large pool of much better qualified, smarter, fairer, more ethical, more diverse, more courageous, and more humane talent like Paulina and many of her colleagues out there in the private sector.
Not surprisingly given the groups who have fought to preserve democracy for all of us over the past four years, a disproportionate amount of that talent is in the immigration/human rights bar. As a nation, we can no longer afford the gross under-representation of this consistently “over performing” and courageous segment of the legal community on our Article III and Immigration Judiciaries!
Build a better Federal Judiciary for a better America!
This is no longer the case. Public confidence and public perception that the courts are non-partisan has eroded. The Republican boycott of Garland, together with Trump’s unprecedented nomination of Barrett and her likely confirmation, will seal the Republican theft of two supreme court seats, at least in the eyes of more than half the electorate, and will ensure conservative control of the court for decades to come.
If Barrett’s record is any indication, the court will soon turn its back on its most treasured precedents and turn America into a more regressive country. Before joining the bench just three years ago, she served as a law clerk to Scalia, whose judicial philosophy she has fully embraced. She has also been a longtime member of the rightwing Federalist Society.
Public confidence and public perception that the courts are non-partisan has eroded
Her short judicial record, together with her scholarly writings, reveal that she is a rock-solid conservative jurist. Like Scalia, she defines herself as an originalist and textualist, which means that the constitution must be viewed as of the time it was written. From that perspective, there is nothing in the constitution that would explicitly support abortion rights, gay marriage, mandatory school desegregation, or the right to suppress evidence that is illegally seized. By contrast, in one of her most famous opinions, United States v Virginia (1996), Ginsburg wrote that “a prime part of the history of our constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded.”
In a 2013 article, Barrett repeatedly expressed the view that the supreme court had created, through judicial fiat, a framework of abortion on demand that ignited a national controversy. In an opinion she joined with another judge, she expressed doubt that a law preventing parents from terminating a pregnancy because they did not want a child of a particular sex or one with a disability could be unconstitutional. These writings surely indicate that Barrett will do whatever she can to limit or eliminate abortion rights.
Barrett has also expressed dissatisfaction with the Affordable Care Act and support for a broad interpretation of the second amendment. She has writtenthat Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning”. She also quoted Scalia,when he wrote that “the statute known as Obamacare should be renamed ‘Scotuscare’” in “honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat”. There is little doubt that Barrett would be inclined to find the Affordable Care Act unconstitutional and thereby deprive millions of Americans of affordable healthcare coverage. Similarly, she wrote a dissenting opinion questioning the constitutionality of a statute that prohibited ex-felons from purchasing guns. Thus, she has demonstrated her fealty to the NRA position that the more guns the better – inevitably leading to more Americans dying from gun violence.
When addressing the legal doctrine known as stare decisis, meaning respect for precedent, Barrett wrote that she “tend[ed] to agree with those who say that a justice’s duty is to the constitution and that it is thus more legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks is clearly in conflict with it”. In other words, she would overturn landmark decisions such as Brown v Board of Education or Roe v Wade if those decisions did not reflect her best understanding of the constitution.
Amy Coney Barrett: what will she mean for women’s rights?
Read more
Stunningly, in an interview in 2016, when asked whether Congress should confirm Obama’s nominee during an election year, Barrett responded that confirmation should wait until after the election because an immediate replacement would “dramatically flip the balance of power”. Given that answer, she should decline the nomination, as her confirmation would even more dramatically flip the balance of the court, entrenching a 6-3 conservative majority.
Confirming this nominee before the outcome of the national elections – which will determine both the identity of the next president and the composition of a new Senate – is unprecedented, inexcusable and a threat to many rights that the majority of Americans have embraced. This is a tragedy about to happen.
Shira A Scheindlin served as a United States district judge for the southern district of New York for 22 years. She is the co-chair of the board of the Lawyers Committee for Civil Rights Under Law and a board member of the American Constitution Society
********************************
Read the rest of Judge Scheindlin’s article at the link.
As I have been saying “Better Judges For A Better America!” It starts with electing a President who will nominate them and a Senate that will confirm them. That requires “regime change” and defeat of the GOP Anti-Democracy Party at all levels.
Dems need to stop sputtering about Barrett, whom they don’t appear able to stop anyway, and get out the vote to insure that she will be the last GOP far right shill on Supremes for many years!Rebuilding and improving American democracy starts NOW, with THIS ELECTION. As Willie Nelson says: “Vote ‘Em Out, Vote ‘Em Out!”
BTW, “Moscow Mitch” and his GOP toadies have plenty of time to race through the Barrett confirmation during an election, but no time to help Americans thrown out of work or losing their health insurance because of the pandemic!🤮⚰️
The consensusamong legaland politicalanalysts is that Judge Amy Coney Barrett, whom Trump placed on a federal appeals court in 2017, is the leading candidate to fill Ginsburg’s seat. Barrett gained fame during her confirmation hearing after Democratic Sen. Dianne Feinstein made inappropriate comments about the judge’s devout Catholic faith. She is a hardcore conservative, but that description doesn’t quite capture how radically her jurisprudence differs from Ginsburg’s. The justice viewed the Bill of Rights and civil rights acts as generous guarantees of human dignity that must be read expansively to achieve their purpose. By contrast, Barrett’s view of the law is fundamentally cruel. During her three years on the 7th Circuit Court of Appeals, Barrett has either written or joined a remarkable number of opinions that harm unpopular and powerless individuals who rely on the judiciary to safeguard their rights.
Faced with two plausible readings of a law, fact, or precedent, Barrett always seems to choose the harsher, stingier interpretation. Can job applicants sue employers whose policies have a disproportionately deleterious impact on older people? Barrett said no. Should courts halt the deportation of an immigrant who faced torture at home? Barrett said no. Should they protect refugees denied asylum on the basis of xenophobic prejudice? Barrett said no. Should they shield prisoners from unjustified violence by correctional officers? Barrett said no. Should minors be allowed to terminate a pregnancy without telling their parents if a judge has found that they’re mature enough to make the decision? Barrett said no. Should women be permitted to obtain an abortion upon discovering a severe fetal abnormality? Barrett said no.
There is no question that, if confirmed, Barrett would cast the fifth vote to either hollow out Roe v. Wade or overturn it altogether. Similarly, there is no doubt that Barrett would dramatically expand the Second Amendment, invalidating gun control measures around the country. It’s quite possible, perhaps even likely, that within a year of her confirmation, Americans will be forbidden from terminating a pregnancy in 21 states—but permitted to purchase assault weapons and carry firearms in public in every state.
. . . .
******************
Read the rest of Mark’s article at the link.
Judge Barrett sounds like someone who could have trained in anti-humanitarian, anti-social, anti-due-process, anti-immigrant judging by Billy the Bigot on the BIA. She certainly fits the model of an unqualified far right attivist.
And what of the other leading contender, Judge Barbara Lagoa of the 11th Circuit. In addition to being a reliable right-wing zealot (she voted to uphold the GOP anti-democracy scheme to overrule the people of Florida and disenfranchise former convicts), she is a Cuban American from Florida, a state where Trump and Biden are running neck and neck. Anybody who thinks today’s Court isn’t “politicized” has been living under a rock!
Daniel Goldberg, Legal Director of the Alliance for Justice (“AFJ”) tells us about everything we need to know about Lagoa:
Daniel Goldberg, legal director of the liberal Alliance for Justice, was critical of Lagoa’s record, saying she is a judge “who has showed contempt for our democracy.” Goldberg said he has “no doubt that she will meet Donald Trump’s litmus test” for a Supreme Court nominee and support his pledge to overturn Roe and the Affordable Care Act.
If you don’t want more unqualified judges with cruel, perverted, and unjust visions of America, and contempt for democracy and the humanity of “the other” in society to be deciding your future and the future of your children and grandchildren, then you had better get out the vote for Biden. Otherwise, your future is likely to look like America’s Jim Crow past!
Lynn S. Adelman, a U.S. district judge in Milwaukee, has riled conservatives by publishing a blistering critique of the Supreme Court’s record under Chief Justice John G. Roberts Jr., focusing on a string of decisions that he argues have fostered “economic inequality,” “undermined democracy” and “increased the political power of corporations and wealthy individuals” at the expense of ordinary Americans.
Adelman also criticized President Trump, who he wrote ran as a populist but failed to deliver “policies beneficial to the general public. … While Trump’s temperament is that of an autocrat,” Adelman wrote, “he is disinclined to buck the wealthy individuals and corporations who control his party.”
The article by Adelman was all the more unusual because it went after the chief justice directly. Roberts, he said, was “misleading” in his 2005 confirmation hearing testimony when he pledged to be a passive “umpire” calling balls and strikes.
Adelman called that metaphor a “masterpiece of disingenuousness,” saying the court under Roberts “has been anything but passive” as its “hard right majority” has actively participated in “undermining American democracy.”
As president, Donald Trump has repeatedly accused federal judges of being political and beholden to the presidents who appointed them. (JM Rieger/The Washington Post)
The article, entitled “The Roberts Court’s Assault on Democracy,” is scheduled for publication in an unspecified forthcoming issue of the Harvard Law & Policy Review, which describes itself as the official publication of the liberal American Constitution Society. It was published in full at SSRN this month.
Adelman, appointed to the bench by President Bill Clinton in 1997, is a former Democratic state senator in Wisconsin and Legal Aid Society trial lawyer. Perhaps his best-known decision nationally was a 2014 ruling striking down Wisconsin’s voter ID law.
His broad critique of the Roberts court, with particular reference to its decisions on voting rights and campaign finance by corporate interests, is not an uncommon one — coming, that is, from liberal scholars or political leaders, including former president Barack Obama.
But coming from a sitting federal judge in a journal article accompanied by such a blunt attack on Roberts, not to mention Trump, it has attracted uncommon attention.
. . . .
**********
Read the complete article at the link.
So I’m not the only one to note the Chiefie’s “Taneyesque” performance, particularly on issues involving the rights of migrants, refugees, Muslims, and other persons of color. He has joined the regime in “Dred Scottifying” those with brown skins who are entitled to the protection of our Constitution and our laws, which Trump has eliminated without legislation, relying largely on transparently fraudulent “national security rationales.”
But, Roberts hasn’t been much good for African Americans or other minorities either, joining his right winger activist colleagues in disingenuously dismantling key parts of civil rights and voting rights protections and turning an intentionally blind eye to partisan gerrymandering carried out by the GOP to disenfranchise minorities. Election results get skewed and folks actually die as a result of these intentional miscarriages of justice to further a toxic right wing agenda aimed at destroying America’s democratic institutions, promoting inequality, and institutionalizing privilege. As Judge Adelman said “the transformation of the Supreme Court from what he described as a defender of ordinary people and ‘subordinated groups’ to an enabler of an ‘anti-democratic’ Republican agenda.” Right on, Judge A!
I also found this comment telling:
Adelman was unapologetic. “I think it’s totally appropriate to criticize the court when there’s a basis for it,” he said. “Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity.”
Compare that with the “muzzling” of the Immigration Judiciary by the Executive reported recently on Courtside. https://immigrationcourtside.com/2020/03/03/🤡🤡clown-court-report-as-due-process-goes-into-death-spiral-regime-muzzles-immigration-judges/
And, as I constantly point out, the Immigration Courts aren’t “courts” at all. They are blatantly unconstitutional “star chambers” run by the Executive Branch with the complicity of the Article III Judiciary who see their work daily and know full well that they are often “rubber stamping” final orders sending folks into potentially life-threatening exile with only a transparently thin veneer of “due process.” But, according to Roberts and his gang, brown-skinned refugees aren’t entitled to even access this process in a reasonable manner, let alone receive the fair hearings to which they are entitled before being “orbited” to potential death in foreign lands. What if it were his wife and kids? I’ll bet their lives would get more consideration.
I also appreciate Judge Adelman’s “spotlighting” the disingenuous testimony of Roberts and other right wingers under oath before the Senate when they “feigned impartiality” to disguise their anti-democracy agenda (without, of course, losing the support of the rightest Republicans who were “licking their chops” at finally getting their long-awaited “judicial wrecking crew” in place).
As one of my esteemed Round Table colleagues said recently:“In the words of Balzac, ‘to distrust the judiciary marks the beginning of the end of society.’”
Unhappily, thanks to Roberts and other complicit Article IIIs, we’re there. Which is exactly how Trump and his supporters want it!
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
So much for the bogus ”passive “umpire” calling balls and strikes.”
A few times a week, attorney Jodi Goodwin walks across the bridge from Brownsville, Texas, to a refugee camp in Matamoros, Mexico, to meet with asylum-seekers. Her clients are among the more than 2,500 immigrants crammed into tents while they wait for U.S. immigration hearings ― often stuck for months in dirty and dangerous conditions.
The forced return to Mexico of migrants seeking refuge in the U.S. is one of President Donald Trump’s most inhumane immigration policies, yet it hasn’t received nearly the attention that his family separation and prolonged detention practices have.
Since January, under Trump’s “Remain in Mexico” initiative ― also known as the Migrant Protection Protocols (MPP) ― the U.S. government has sent at least 54,000 immigrants to wait for their court dates in Mexican border towns. Instead of staying with relatives in the U.S., families are sleeping in tents for up to eight months, in unprotected areas where infections spread within crowded quarters and cartel kidnappings are commonplace. Family separation ended a year ago. But Trump’s mistreatment of asylum-seekers continues in a different form.
Some parents are so desperate that they’ve resorted to sending their children across the bridge alone, since unaccompanied kids who arrive at the border cannot be turned away under MPP. Since October, at least 135 children have crossed back into the U.S. by themselves after being sent to wait in Mexico with their parents, according to the U.S. Department of Health and Human Services.
In Mexico, many of these migrants don’t have access to lawyers and are forced to plead their cases in makeshift tent courts set up along the U.S. border where overwhelmed judges conduct hearings via video teleconference. The courts have limited public access ― lawyers and translators say that they have been barred from attending hearings. Migrants’ advocates argue that the tent courts violate due process, and immigrant rights organizations have filed a federal lawsuit against Immigration and Customs Enforcement over the use of videoconferencing.
Goodwin, who has 42 clients, said there is a serious shortage of lawyers willing to represent immigrants staying in another country where crime is rife. She spoke with HuffPost about why the Remain in Mexico policy is even more traumatic than separating thousands of families and why it hasn’t sparked public outrage.
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Jodi Goodwin (center) at the refugee camp in Matamoros, Mexico.
HuffPost: Immigrant parents forced to wait in Mexico are making the heart-wrenching choice to send their kids to the U.S. alone. What are the conditions like at the camp in Matamoros?
Jodi Goodwin: It smells like urine and feces. There’s not enough sanitation. There’s 10 port-a-potties for thousands of people. Up until recently, there was no potable water available at all. People were bathing in the Rio Grande river, getting sick and, in some cases, drowning. People were seriously dehydrated.
The camp sounds completely unfitting for any human being, let alone children.
It’s a horrific situation to put families in. It’s great to live in a tent for the weekend when you’re going to the lake. It’s not great to live in a tent for months at a time where you don’t have basic necessities.
Are kids getting sick?
The kids are sick every day. I’ve seen all kinds of respiratory illnesses and digestive illnesses. I’ve seen chronic illnesses like epilepsy. I saw a baby that appeared to have sepsis who was forced to wait on the bridge for more than three hours before being taken to a hospital.
And what about the kidnappings? Have you heard of families being taken by cartel members who then try and extort an immigrant’s U.S. relatives for money?
About half of the people I’ve spoken to in Mexico have been kidnapped. The cartel knows if they can grab an immigrant, they’re likely to be able to work out a ransom. If they don’t, then they just kill them.
Any specific examples?
I dealt with one case where a mom from El Salvador and her 4-year-old son were kidnapped within an hour of being sent back to Mexico under MPP. They were taken for eight days before her brother in the U.S. paid the kidnappers $7,000.
The lady was terrified. She was sleep-deprived, food-deprived and water-deprived. She said that the people who had kidnapped her were extremely violent and hit her kid. They were drinking alcohol and raping people at a stash house where several other people were being held.
LOREN ELLIOTT / REUTERS
Migrants, most of them asylum-seekers sent back to Mexico from the U.S. under the “Remain in Mexico” program, occupy a makeshift encampment in Matamoros, Mexico, on Oc. 28, 2019.
The last time we spoke, you were on the frontlines of family separation, visiting detention centers where mothers were hysterically crying after being ripped apart from their children. How does the trauma of MPP compare, particularly for parents who are sending their kids across the border alone?
It’s way worse. I can’t with any confidence say that they will ever see their children again.
Why not?
I knew there were legal ways to get out of family separation. We were able to talk with our clients and didn’t have to go off to another country. And for those parents who got through their interviews or their court hearings, we were able to get them back with their kids.
With MPP, the assault is not only on human rights but also on due process within the court systems, which has completely hijacked the ability to be able to fix things. The parents can’t even get into the country to try to reunify with their kids.
Nearly 3,000 children were separated from their parents under Trump’s zero-tolerance policy. Do you think a similar number of families will be ripped apart because of Remain in Mexico?
It could be more. Over 55,000 people have been sent back to Mexico. I’ve talked to so many parents who have sent their kids across. It’s a heart-wrenching decision process that they go through. How do you give up your baby?
It reminds me of Jewish parents who were captives in Nazi Germany and had to convince their kids to get on a different train or go in a different line to save their own lives.
Have you witnessed these separations firsthand?
In November I saw a little boy and his 4-year-old sister sent across the bridge with an older child, who was about 14 years old. The teenager carried the baby boy, who still had a pacifier in his mouth, and the girl was holding onto the older kid’s belt loop.
I was standing on the bridge between Matamoros and the U.S. and I turned around to look down at the bank of the Rio Grande river. Every single parent who has sent their kid to cross tells me the same thing: As soon as they say goodbye and hug their kids, they run to the bank to watch them. [Her voice breaks] I knew there was somebody probably standing on that bank hoping those kids made it across.
Do you still think about those kids?
Oh yeah. The green binky that the little baby was sucking on is knitted in my mind.
VERONICA CARDENAS / REUTERS
The Mexican National Guard patrols an encampment where asylum-seekers live as their tents are relocated from the plaza to near the banks of the Rio Grande in Matamoros on Dec. 7, 2019.
You’ve been working hundreds of hours a month to try and help people stranded in Matamoros. This work must take a toll on you personally.
I’ve been practicing law for 25 years and the last four to five months of practicing law has broken me.
I don’t want to fucking do this anymore. [Her voice breaks again] It sucks. How do you explain to people that you know they thought they were coming to a place where there’s freedom and safety and where the laws are just, but that’s not the situation? I’m very mad.
Family separation resulted in massive outcry from the public, which eventually pressured the government to end the zero-tolerance policy. Why is MPP not getting the same attention?
There is no public outrage because it’s not happening on our soil. It’s happening literally 10 feet from the turnstile to come to the U.S. But because it’s out of sight and out of mind, there is no outrage. What ended family separation was public outrage. It had nothing to do with lawsuits. It had everything to do with shame, shame, shame.
This interview has been lightly edited for length and clarity.
***********************************
I’m with you, Jodi!Thanks for your dedication to justice for the most vulnerable!
What’s wrong with this scenario: life-tenured Federal Judges who won’t stand up for the rule of law, Due Process, and Equal Protection in the face of an arrogantly and overtly lawless White Nationalist Regime; DOJ and other U.S. Government lawyers who defend immoral and disingenuous positions in Federal Court, often, as in the Census Case and the DACA Case using pretextual rationales and knowingly false information; dehumanization, with overwhelming racial and religious overtones, of those who deserve our protection and rely on our sense of fairness; undercutting, mistreating and humiliating the brave lawyers like Jodi who are standing up for justice in the face of tyranny; GOP legislators who are lawyers defending Trump’s mockery of the Constitution, human decency, and the rule of law and knowingly and defiantly spreading Putin’s false narratives.
Obviously, there has been a severe failure in our legal and ethical education programs and our criteria for Federal Judicial selections, particularly at the higher levels, and particularly with respect to the critical characteristic of courage. Too many “go alongs to get alongs!” I can only hope that our republic survives long enough to reform and correct these existential defects that now threaten to bring us all down.
Where’s the accountability? Where’s the outrage? Where’s our humanity?
We should also remember that many asylum seekers from Africa, who face extreme danger in Mexico, are also being targeted (“shithole countries?”) and abused as part of the Regime’s judicially-enabled, racially driven, anti-asylum, anti-rule-of-law antics at the Southern Border. https://apple.news/AyYSWSXNfSdOm63skxWaUTQ
Also, morally corrupt Trump Regime officials continued to tout “Crimes Against Humanity” as an acceptable approach to border enforcement and “reducing apprehensions!” Will machine gun turrets be next on their list? Will Article III Judges give that their “A-OK?”
We’re actually paying Article III Federal Judges who are knowingly and intentionally furthering “Crimes Against Humanity.” Totally outrageous!
Today’s biggest story set the scene for news that continues to develop about the Ukraine scandal.
The big story, in terms of its ability to frame the crazy events coming at us at top speed, happened last night, when Attorney General William Barr gave a speech to the Federalist Society, a group of conservative and libertarian lawyers who argue for an originalist interpretation of the Constitution. The conviction of members of the Federalist Society that courts should not do anything that is not listed in the original Constitution makes them great friends to business and to white men, since they focus on the protection of property and deny that laws can regulate business, provide a basic social safety net, or protect minority or women’s rights. The Federalist Society organized in 1982 to push back against what its members felt was an activist court system that tried to reorganize society from the bench. It has been extraordinarily successful in taking over the courts: currently five members of the nine-member Supreme Court are current or past Federalist Society members: Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
In his speech, Attorney General William Barr claimed he was going truly to be an originalist, and explained by taking American history back to its roots. In contrast to every single American historian in, well, American history, Barr argued that Americans had rebelled not against King George III in 1776, but rather against Parliament. What the Founders feared, he said, was not a strong executive, but rather a strong Parliament. (You can tell where this is going, right?) Barr was setting up the idea that Congress has grown far too strong lately (in fact, virtually every scholar will tell you that it is the Executive that has grown terribly strong since 1981) and that it is badly hampering the president’s ability to do his job. The president should be able to act on his own initiative, and not be checked by either congressional or judicial oversight, Barr insisted, in a theory known as that of the “unitary executive.”
Barr did not stop there, though. He went on to blame “The Resistance” for sabotaging the Trump administration, and claimed that its members were “engaged in a war to cripple, by any means necessary, a duly elected government.” More, he claimed “the Left” is “engaged in the systematic shredding of norms and the undermining of the rule of law.” Conservatives, he said, were at a disadvantage against progressive’s “holy war” because they “have more scruple over their political tactics” especially when facing “a hyper-partisan media.” (You might want to reread those last two sentences.)
Richard Painter, who was George W. Bush’s ethics lawyer, called this a “lunatic authoritarian speech.” Attorneys General are supposed to be non-partisan, and Barr lumped all opposition to Trump as the dangerous far left. The “Left,” in America, generally refers to those few people who advocate for communism—a system in which the government owns and controls all industries and businesses– or anarchy, a system in which there is no central authority at all. It’s actually a pretty small group. But Barr, and other recent Republicans, have included in “the Left” everyone who believes that the government has any role to play in regulating business, providing a basic social safety net, and promoting infrastructure, all those things the Federalist Society opposes. In fact, most of us, regardless of whether we vote Republican or Democratic, want some basic regulations, social welfare programs, and infrastructure development.
But now the Attorney General, who is charged with overseeing our justice system, has declared that anyone standing in the way of Trump is not just a member of “the Left” but also is waging war against America. Painter is quite right: this is the language that enables a leader to imprison people he considers his enemies.
Barr is not saying all this in a vacuum. More news dropped today about the Ukraine scandal, filling in the lines we already suspected. Congress released transcripts today from Tim Morrison and Jennifer Williams, both of whom were deeply involved in the Ukraine mess and were on the July 25 call between Trump and Zelensky. A long-time career official in the State Department, Morrison replaced Fiona Hill as the Senior Director for Russia and Europe in July 2019. Williams is another long-standing career officer in the State Department. Since April 2019, she has been the Special Adviser for Europe and Russia for Vice President Mike Pence. Morrison said that Ambassador to the European Union Gordon Sondland made it clear that aid was being withheld until there was an announcement about an investigation into Burisma, the company on whose board Hunter Biden sat.
This jibed with the opening statement of David Holmes, the political counselor at the Embassy in Kyiv, who testified for seven hours yesterday behind closed doors. Holmes was an eye-witness to the efforts of Trump, his lawyer Rudy Giuiliani, and Ambassador to the European Union Gordon Sondland, to pressure the new Ukraine president Volodymyr Zelensky into announcing an investigation into Burisma, the company on whose board Hunter Biden sat. Holmes’s opening statement was explosive. It was not only first hand, but also it tied Trump directly into the efforts, and it made very clear that the administration was demanding the announcement of an investigation before it would release the money Congress had appropriated for Ukraine’s fight against Russian incursions. Holmes also said that he had reported what he had heard to John Eisenberg, Legal Advisor to the National Security Council, the same man to whom Lt. Col. Alexander Vindman had reported the July 25 call, and, once again, Eisenberg had done nothing. (Eisenberg is refusing to honor a subpoena to testify.)
Then, CNN dropped the story that at last year’s White House Hanukkah party Lev Parnas and Igor Fruman met privately with Trump and Giuiliani. After the meeting, Parnas told two people that the president had given him a secret mission to pressure the Ukraine government to investigate Joe and Hunter Biden. The Wall Street Journal reports that in February, Parnas and Fruman met with the Ukraine President at the time, Petro Poroshenko, and his Prosecutor General Yuriy Lutsenko, offering to invite Poroshenko to a White House State dinner if he publicly announced an investigation. As I wrote here two days ago, this would have boosted both Poroshenko’s and Trump’s reelection campaigns. In March, Lutsenko smeared U.S. Ambassador to Ukraine Marie Yovanovitch to an American reporter and Sean Hannity ran with the story on his show, but the scheme fell apart when voters elected Zelensky instead of reelecting the corrupt oligarch Poroshenko. Then they had to scramble to come up with a new plan, and the whole ham fisted Ukraine scandal took off.
The Ukraine scandal is fleshing out, and it is truly astonishing that there is not more evidence that can be read in Trump’s favor. This increasingly just looks like a shakedown that weakened national security to help Trump rig the 2020 election. Meanwhile, in northern Syria, where Turkish and Russian troops moved in when we moved out, the Russians boasted yesterday that they have now occupied a former U.S. air base.
Trump spent several hours today at Walter Reed hospital. The visit was unexpected and unannounced, but the White House said he had decided to have portions of his annual physical done three months early.
Attorney General Bill Barr Is Getting Roasted for His Outrageous Speech Blasting Progressives
As the impeachment hearings continued, Attorney General Bill Barr on Friday trash-talked Democrats for attempting to “drown the executive branch with oversight demands,” saying they were working for political gain without thinking of the consequences.
“In waging a scorched-earth, no-holds-barred war against this administration, it is the left that is engaged in shredding norms and undermining the rule of law,” Barr told a room of attorneys at the annual gathering of the Federalist Society, a conservative legal group that has been influential in determining President Donald Trump’s nominees for federal judges.
The remarks about Democrats ignoring the rule of law were especially ironic because they came a mere hours after Roger Stone, one of Trump’s previous advisers, was convicted on all counts for lying to Congress during its probe into Russia’s interference in the 2016 election. The attorney general’s speech also came on the second day of presidential impeachment hearings examining allegations that Trump attempted to interfere in the 2020 elections by asking Ukrainian President Volodymyr Zelensky to investigate former Vice President Joe Biden and his son Hunter.
Barr criticized Democrats for launching a “holy war” and using “any means necessary to gain momentary advantage,” while he said conservatives “tend to have more scruple over their political tactics and rarely feel that the ends justify the means.”
. . . .
Barr reportedly received a standing ovation, but outside the halls of the Federalist Society, his remarks sparked outrage and intensified calls from the left to impeach not only the president, but the attorney general himself. Others were quick to roast Barr for his statements. “Bill Barr is the type of bare knuckles lawyer the Church would have hired thirty years ago to cover up sex abuse cases,” Richard Painter, a former White House ethics counsel, tweeted.
. . . .
“Yesterday AG Barr addressed a radical political group and gave one of the most vicious partisan screeds ever uttered by a US cabinet officer,” Rep. Bill Pascrell (D-N.J.) tweeted Saturday morning. “Barr says trump should have king-like powers. Barr is a liar and a fanatic and should be impeached and stripped of his law licenses.”
. . . .
*********************************
Read Samantha’s complete article which includes the full the two of a number of tweets at the link.
Hours after a new witness testified in the House’s latest impeachment hearing on Friday, Attorney General William Barr railed against Democrats for declaring a “war of resistance against this administration.”
In a speech before the conservative Federalist Society, Barr rebuked lawmakers for probing President Donald Trump’s potential power abuses, suggesting their efforts are illegitimate.
“The sheer volume of what we see today ― the pursuit of scores of parallel investigations through an avalanche of subpoenas ― is plainly designed to incapacitate the executive branch, and indeed is touted as such,” Barr said. “The costs of this constant harassment are real.”
Barr’s portrayal of oversight as harassment echoes Trump’s repeated claims that he is the victim of a partisan “witch hunt” rather than the subject of a justified inquiry into his dealings with Ukraine, which remain at the heart of Democratic-led impeachment proceedings.
“The fact of the matter is that, in waging a scorched earth, no-holds-barred war of resistance against this administration, it is the left that is engaged in the systematic shredding of norms and undermining the rule of law,” Barr added. “This highlights a basic disadvantage that conservatives have had in contesting the political issues of the day.”
President Trump is convinced he has the “absolute right” to do anything from asking other countries to investigate his political opponents to pardoning himself. But he couldn’t possibly tell you why — aside from his innate conviction that “when you’re a star, they let you do it” — you can get away with anything. Enter Attorney General William P. Barr to put a pseudo-intellectual gloss on Trump’s authoritarian instincts. In a Friday night speech to the Federalist Society, Barr gave a chilling defense of virtually unlimited executive authority.
Barr’s wrongheaded assumption was that “over the past several decades, we have seen steady encroachment on presidential authority by the other branches of government.” His view faithfully reflects the conservative consensus of the 1970s when he was a CIA analyst and a law student. Few serious analysts share that view today at a time when the president claims the authority to kill suspected terrorists anywhere in the world without any judicial oversight. In fact, conservatives decried President Barack Obama’s tendency to rule by fiat — for example, in protecting “dreamers” from deportation or reaching a nuclear agreement with Iran that wasn’t submitted for Senate ratification.
Trump has now taken rule-by-executive-order to the next level by declaring a “state of emergency” to spend money on his border wall that Congress refused to appropriate. Trump has also misused his authority in myriad other ways, including obstructing justice (as outlined in a special counsel report that Barr deliberately mischaracterized) and soliciting a bribe from Ukraine to release congressionally appropriated military aid.
Yet, to hear Barr tell it, Trump is somehow denied power by the nefarious “Resistance.” Barr decried Trump critics who do not view “themselves as the ‘loyal opposition,’” but rather “see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.”
Earth to Barr: Trump does not treat his critics as “the loyal opposition.” He calls them “human scum,” “traitors” and “the enemy of the people,” using the language of dictators. And it is Trump and his toadies — not his opponents — who are “willing to use any means necessary to gain momentary advantage.”
Barr went on to blame the “Resistance” for Trump’s failure to get more nominees confirmed. The real problem is Trump’s incompetence and his preference for “acting” appointees to dodge the constitutional requirement to seek the Senate’s “advice and consent.” (Trump has not nominated anyone for nearly 20 percent of the top federal jobs.) If Barr wants to find a real abuse of the confirmation process, he should talk to Merrick Garland.
As devoid of self-awareness as his master, Barr whines about “the pursuit of scores of parallel ‘investigations’ through an avalanche of subpoenas.” He conveniently forgets that Republicans tried to impeach President Bill Clinton for lying about sex and spent years probing the Benghazi, Libya, attack in a failed attempt to blame Hillary Clinton. Trump is stonewalling congressional subpoenas at an unprecedented rate, forcing Congress to seek judicial assistance to enforce legitimate requests for documents and witnesses. But Barr denies that the courts have any right to “resolve … disputes” between the executive and legislative branches — effectively allowing the president to act like a king.
The attorney general went on to rail against judicial review of administration actions such as “the travel ban.” This was ultimately upheld by the Supreme Court after the administration rewrote the initial versions, which constituted clear discrimination on religious grounds. Yet Barr is still aggrieved that the courts dared “to inquire into the subjective motivation behind governmental action” — i.e., to look at Trump’s own words about banning Muslims rather than accept the administration’s disingenuous explanations.
Barr blamed the courts and the president’s critics for the fact that so many administration actions have been challenged in court. The truth is Trump has nobody but himself to blame. Many of the lawsuits accuse the administration of violating the Administrative Procedure Act, which the executive branch can comply with simply by showing that its actions are not “arbitrary and capricious.” This is an incredibly low standard, which is why the normal “win rate” for the government in such cases is about 70 percent. According to the Institute for Policy Integrity at the New York University School of Law, the Trump administration’s win rate is less than 7 percent.
Trump likes to blame such setbacks on “Obama judges,” but many of the judges ruling against him are Republican appointees. Chief Justice John G. Roberts Jr., for example, wrote the 5-to-4 decision in June in which the Supreme Court blocked Trump’s attempt to include a citizenship question on the 2020 Census.
“In this partisan age,” Barr sanctimoniously concluded, “we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.” He is right, but not in the way he intended. The real threat to “our Constitutional structure” emanates not from administration critics who struggle to uphold the rule of law but from a lawless president who is aided and abetted in his reckless actions by unscrupulous and unprincipled partisans — including the attorney general of the United States.
********************************
Mary Papenfuss Contributor HuffPost
Finally, let’s hear from Mary Papenfuss, also at HuffPost:
Attorney General William Barr’s latest extreme defense of Donald Trump has triggered a wave of calls for his impeachment — and disbarment.
Richard Painter, the former chief White House ethics attorney in the George W. Bush administration, tweeted that Barr’s remarks Friday before the conservative Federalist Society were “another lunatic authoritarian speech” amid an impeachment investigation into the president. He claimed that Barr — a member of the conservative Catholic society Opus Dei — is “the type of bare knuckles lawyer the Church would have hired thirty years ago to cover up sex abuse cases.”
. . . .
*****************************
Read the rest of Mary’s article at the link.
******************************
Somewhat “below the radar screen:” Barr’s repetition of Session’s blatantly unethical performance by acting as a “quasi-judicial decision maker” in Immigration Court cases where he clearly has both an actual and apparent bias in favor of a party, the DHS, and against another party, the individual migrant, particularly any asylum seeker.
Obviously, viewed through Barr’s perverted historical lens, we’ve made some seriously wrong moves.According to Barr’s interpretation, we should have allied ourselves with Hitler during World War II. Now, there’s a guy who understood the concept of the “Unitary Executive.” And, he sure knew how to deal with opposing legislators, “the resistance,” and others who were “enemies of the state” or of “inferior stock.” Why on earth would we have aligned ourselves with, and helped rebuild, the noxious parliamentary democracies of the West?
One of our allies, Stalin, did actually demonstrate the wonderful power of the “Unitary Executive” — talk about a guy who WAS the State and annihilated all opposition, real and imagined! He certainly would have known what to do with subversives who preached “impeachment” under the Constitution!
But, concededly, Stalin’s godless communism doesn’t fit in well with Barr’s Catholic Christian theocracy (minus, of course, the social justice teachings of Christ and the Catholic Church). Hitler’s pure Aryian Christian superiority was a much better fit with Barr’s historical outlook.
Of course, according to the Barr view, the seminal figure in Republicanism, Abe Lincoln, erred by not aligning himself with Jeff Davis and the Confederacy. Davis certainly knew how to operate without much legislative accountability. And the founders of the Confederacy also possessed Barr’s superior understanding of the relationship between the State and the Divine: “establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God.”
Sure, easy to believe that God was always a big fan of enslavement, rape, brutality, white privilege, and theft of services from enslaved African Americans, who also happened to be believers in God. Fits right in with Barr’s dehumanization of Hispanic workers, trashing of LGBTQ Americans, denial of rights to asylum seekers, threats to political opponents, and war on Hispanic Americans who have the audacity of wanting to vote and live peacefully in their communities without being terrorized by DHS enforcement.
George Washington, who wrongly refused to install himself as either King or “President for Life” was, according to Barr’s historical perspective, a dangerous wimp who diminished the potential powers of the “Unitary Executive.”
Undoubtedly, our Founders had their flaws. After all, the Constitution not only enshrined the dehumanization of African Americans, who had actually made the success and prosperity of the American Republic possible, but also excluded the majority of inhabitants from political participation.
But, unlike Barr and his fellow “originalists,” our Founders were largely persons of vision and good will who had enough self awareness and humility to see a better and more dynamic future. They would certainly be shocked and dismayed to find out that rather than viewing our Constitution rationally, as a blueprint to be built upon for a better, more inclusive, more tolerant future, two plus centuries later, individuals like Barr holding supposedly responsible positions under our Republic, would be mindlessly and immorally urging us never to escape the limitations and mistakes of our distant past.
Disturbingly unqualified as he is to serve as our Attorney General, Barr does illustrate the moral and legal bankruptcy of the “fake doctrine” of “originalism.” It’s actually an intellectually indefensible excuse for an empowered, largely White, predominantly male, minority to exclude the majority of America’s inhabitants and their hopes and dreams from full participation in our democracy. It’s as ugly and dishonest as Barr’s own tenure as Attorney General.
