"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Here’s the list with bios:
https://www.justice.gov/eoir/page/file/1295301/download
This list includes what appears to be a municipal traffic court judge and someone who spent the last four years working for a white nationalist hate group (per the SPLC).
https://www.youtube.com/watch?v=mesbqxTSzEM
PWS
07-19-20
Judge Tsankov writes solely in her capacity as Eastern Region Vice President with the National Association of Immigration Judges (“NAIJ”) in the ABA Journal:
April 28, 2020 HUMAN RIGHTS
Human Rights at Risk: The Immigration Courts Are in Need of an Overhaul
The views expressed here do not represent the official position of the United States Department of Justice, the attorney general, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.
by Hon. Mimi Tsankov
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“While immigration courts reside within the executive branch, they should not be merely a tool to achieve desired policy outcomes.”
—Senator Sheldon Whitehouse
So wrote Senator Sheldon Whitehouse (D-RI) in his February 13, 2020, letter to Attorney General William Barr, in which he and eight members of the Senate Judiciary Committee called upon Barr to take action against, what he termed, an increasingly troubling politicization of the immigration court adjudication process.
The stakes couldn’t be higher for those seeking human rights protection in the form of asylum and other forms of relief from persecution and torture. Individual liberty and personal safety interests are often at stake in immigration court proceedings where immigration judges have the authority to grant protection from persecution. Id.; see also, 8 U.S.C. 1158. Whitehouse gave voice to what is becoming an alarming trend—the increasing political influence over individual immigration cases. This action, he explained, is undermining the public’s confidence in the immigration courts and creating an impression that “cases are being decided based on political considerations rather than the relevant facts and law. The appearance of bias alone is corrosive to the public trust.” Whitehouse Letter, supra, at 5; see also, 8 U.S.C. Section 1229a(b)(4)(A) and (B); 8 C.F.R. 1003.10(b).
Whitehouse recounted a sentiment articulated previously by a host of legal community leaders for more than a decade, not the least of which was ABA President Judy Perry Martinez, who in a recent statement before the U.S. Congress explained that housing a court within a law enforcement agency has exacerbated an inherent conflict of interest undermining “the basic structural and procedural safeguards that we take for granted in other areas of our justice system.” See, Am. Bar. Assoc., 2019 Update Report: Reforming the Immigration System, Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases (Mar. 2019). As she explained, “this structural flaw leaves Immigration Judges particularly vulnerable to political pressure and interference in case management.” Martinez Testimony, supra, at 1.
It is important to note that these concerns are being expressed on the heels of what some see as growing impunity within the executive branch, focused almost single-mindedly on the speed of removal hearings at the risk of diminished due process. See Statement of Jeremy McKinney, Secretary, American Immigration Lawyer’s Association, NPR, Justice Department Rolls Out Quotas for Immigration Judges (April 3, 2018). The Justice Department is being charged with implementing a host of policies that diminish the primary responsibility of ensuring a fair hearing. For the past three years, the attorney general has used a process known as “certification,” a power historically used sparingly, to overrule decisions made by the Board of Immigration Appeals and set binding precedent. Id. Some have argued that the frequency with which this procedure has recently been employed borders on abuse as it seeks to severely limit the number of immigrants who can remain in the United States. Whitehouse Letter, supra, at 5. Equally troubling is the charge that the attorney general is using certification as a way to overrule immigration judges whose decisions don’t align with the administration’s immigration agenda. Id.
One area of particular concern is the recent encroachment by the agency into judicial independence. The National Association of Immigration Judges (NAIJ), which is the union representing sitting immigration judges, argues, alongside many others in the legal community, that these incursions into judicial independence are part of a broader effort to fundamentally alter how immigration removal cases are adjudicated, and that such actions are having deleterious effects. See Statement of Judge A. Ashley Tabaddor, President of the National Association of Immigration Judges, Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee Hearing on “Strengthening and Reforming America’s Immigration Court System” 2 (Apr. 18, 2018).
An overcrowded, fenced area holds families at a border patrol station in McAllen, Texas.
Thomas Cizauskas from Flickr
Among the new measures implemented by the Justice Department are unrealistic and impractical one-size-fits-all case quotas and deadlines that squeeze immigration judges where they are most vulnerable—their status as “employees.” If an immigration judge provides one too many case continuances, even though related to a valid due process concern, she risks being terminated. Every pause for judicial reflection, or break for much needed legal research, risks slowing down the “deportation machinery” that the adjudication process is veering toward and threatens to eviscerate procedural due process, even though such due process is mandated by the U.S. Constitution. Id.
These controversial new policies have become so pervasive and so threatening to judicial independence that they have raised alarms. What began in 2018 as a few dramatic instances involving the abrupt removal and reassignment of cases from an immigration judge’s docket previewed the agency’s more recent alarming actions where the shuffling of scores of cases and entire dockets sometimes multiple times within a single day has become the norm. The endless docket shuffling, and the chasing of performance “completions” that correspond to a job-preserving metric, seems designed to make political statements rather than ensuring victims of human rights abuses are afforded due process. A complex, multi-witness, multi-issue hearing is afforded the same value as an order of removal for failure to appear at a hearing. See Mimi Tsankov, Judicial Independence Sidelined: Just One More Symptom of an Immigration System Reeling, 55 Cal. W. L. Rev. 2 (2019).
. . . .
Mimi Tsankov serves as eastern region vice president with the National Association of Immigration Judges and has been a full-time immigration judge since 2006.
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Read Judge Tsankov’s complete article at the link.Thanks Judge Tsankov. You are a “True American Hero!” 🗽🎖👩⚖️👍🏼
The situation in the Immigration Courts is totally out of control and unacceptable. Both Congress and the Article III Courts have failed in their duties to require and enforce the “fair and impartial adjudication” required by the Fifth Amendment to our Constitution.
These grotesque derelictions of duty are inexcusable. They call not just for an independent Immigration Court but also for “regime change” in both the Executive and the Senate and a total rethinking of what qualities should be required for the privilege of serving for life in the Article III Judiciary.
While there are many Article III derelictions of duty out there (and some courageous performances, particularly among the ranks of U.S. District Judges), I’m specifically highlighting the disgraceful performance of the “J.R. Five” ☠️🤮👎🏻 on the Supremes, who have been AWOL on Due Process, immigration, human rights, and humanity itself when our country needs them most. Never again! We need a better Supreme Court, one that lives up to its role as America’s highest tribunal entrusted with protecting our Constitutional, individual, and human rights! John Marshall must be turning over in his grave with the wimpy performance of John Roberts in the face of Executive tyranny and contempt for our Constitution!
05-02-20
Nolan Rappaport writes in The Hill:
. . . .
Hiring judges without immigration law experience
Congresswoman Sheila Jackson Lee (D-Texas) pointed out that the Executive Office for Immigration Review (EOIR) has been hiring as judges lawyers who do not have any immigration law experience.
In fact, the experience requirement in immigration judge vacancy announcements doesn’t even mention immigration law experience:
“Experience: Applicants must have a full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials … Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document … was issued by a court, a grand jury, or appropriate military authority…”
EOIR recently swore in 28 new immigration judges, and 11 of them had no immigration law experience.
None.
That’s a problem for justice.
Due process isn’t possible when judges do not fully understand the law — and it takes a long time to learn immigration law. According to the American Bar Association, “To say that immigration law is vast and complex is an understatement.” Rutgers University law professor Elizabeth Hull says that our immigration laws are “second only to the Internal Revenue Code in complexity.”
The concern over judges with no immigration law experience is more than just idealism or theory — the inexperience can impact people’s lives in major ways.
For instance, an otherwise deportable alien may be eligible for lawful permanent resident status if he has been in the United States long enough. 8 USC §1259 permits certain deportable aliens to register for permanent residence if they entered the United States prior to Jan. 1, 1972; have resided in the United States continuously since such entry; have good moral character; and are not ineligible for citizenship.
How many inexperienced immigration judges would know that?
This influx of inexperience may explain why asylum decisions vary so widely from judge-to-judge.
What’s more, these judges might not be able to meet the eligibility standards for an Article 1 court if subject matter expertise is required.
. . . .
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You can read Nolan’s full article, from which this is excerpted, at the above link. I agree wholeheartedly with this part of Nolan’s conclusion: “EOIR should not be trying to deal with this backlog by hiring more judges if it can’t find judges with adequate immigration law experience.”
Here’s an actual anecdote that I received recently from a Courtside reader:
I had a merits hearing . . . with a new IJ with no immigration background at all. It happened to be an old adjustment which the ICE trial attorney had reviewed and agreed in advance to a grant, pending a few questions. So the ICE TA explained this to the IJ, and I asked the IJ if [he/she] understood the terms involved. And it turned out that the IJ didn’t know what an I-140 is and didn’t know what 245(i) is. [He/She] didn’t say a word; we ran the hearing. The ICE attorney actually had to fill out the IJ’s order for [him/her] to sign; [he/she] had no idea what to write or what boxes to check.
What if it had been a contested hearing?
Yes, indeed, “what if this had been a contested hearing?” I assume that what passes for EOIR/DOJ “new judge training” these days just tells new judges that “when in doubt, kick ‘em out.” Just check the “denied” and “ordered removed” boxes on the form orders. At least this one had a “happy ending.” Many do not!
I’ve heard other anecdotes about newer Immigration Judges totally ignorant about asylum law and afraid to admit it who cited Matter of A-B- as basis for “blanket summary denial” of all gender-based asylum claims from Central America. Other newer judges reportedly are largely unaware of the burden-shifting “regulatory presumption of future persecution” arising out of past persecution.
Others apparently don’t understand the interplay and differing requirements and consequences among asylum, withholding of removal under the Act, CAT withholding, and CAT deferral. “Mixed motive,” a key life or death concept in asylum cases — you’d be lucky to find a handful of Immigration Judges these days who truly understand how it applies. That’s particularly true because the BIA and the Attorney General have recently bent the concept and many of the Circuit precedents interpreting it intentionally out of shape to favor DHS enforcement and discriminate against bona fide asylum applicants.
The generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza-Fonseca and embodied in the BIA’s Matter of Mogharrabi is widely ignored, even mocked in some of today’s enforcement driven, overtly anti-asylum Immigration Courts.
To be fair, I’ve also heard praise from advocates for some of the newer Immigration Judges who seemed eager and willing to be “educated” by both counsel, weren’t afraid to admit their gaps in knowledge and request amplification, and seemed willing carefully to weigh and deliberate all the facts and law to reach a just and well-explained decision; this contrasts with “summary preconceived denial” which is a common complaint among advocates that also includes some judges who have been on the bench for years.
The larger problem here is that too many of the Circuits Courts of Appeals seem to have gone “belly up” on their duty to carefully review what is happening in the Immigration Courts and to insist on the basics of fundamental fairness, due process, and fair and impartial decision-making.
It’s pretty simple: At neither the trial nor appellate levels do today’s Immigration Courts operating under EOIR and DOJ control qualify as “expert tribunals.” It is legally erroneous for Article III Courts to continue to “defer” to decision makers who lack fairness, impartiality, and subject matter expertise.
With human lives, the rule of law, and America’s future at stake here, it’s past time for the Article III’s to stop pretending that is “business as usual” in the warped and distorted “world of immigration under the Trump regime.”
Would any Article III Judge subject his or her life to the circus now ongoing at EOIR. Of course not! Then it’s both legally wrong and morally corrupt for Article IIIs to continue to subject vulnerable migrants to this type of charade and perversion of justice!
PWS
02-05-20
From the Post Editorial Board:
“PRESIDENT TRUMP has confirmed 12 nominees to judgeships on the federal courts of appeals — more than any other modern president achieved during his first year. Yet while Republicans may pride themselves on this record, a string of recent embarrassments shows that the Senate is rushing too quickly through Mr. Trump’s choices.
The White House announced last week that it would not be moving forward with two nominees for district court posts, Brett Talley of Alabama and Jeff Mateer of Texas. Mr. Talley and Mr. Mateer faced resistance from Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) and Sen. John Neely Kennedy (R-La.) — though both senators voted in support of Mr. Talley’s nomination before the committee.
The case of Mr. Mateer, who referred to transgender children as “Satan’s plan,” is the less concerning of the two. Before Mr. Mateer went far in the confirmation process, questions arose over whether he had failed to disclose his hateful comments. By the time Mr. Trump withdrew his support, Mr. Mateer had yet to even file the paperwork required for his committee hearing.
Mr. Talley, on the other hand, is a case study of how the confirmation process has broken down. Unanimously rated “not qualified” to be a judge by the American Bar Association, he has never tried a case or filed a motion in federal court. His hobbies have included ghost-hunting and right-wing political blogging. Yet he won the support of every Republican on the Judiciary Committee. Mr. Grassley, Mr. Kennedy and even Mr. Talley’s home-state Sen. Richard C. Shelby (R-Ala.) balked only when it surfaced that the nominee had failed to disclose both his wife’s work with White House Counsel Don McGahn and a number of his contentious Internet comments — including one defending “the first KKK.”
We are glad that these senators raised concerns about Mr. Talley’s nomination and that the White House heeded their warnings. But it should not have taken these revelations about Mr. Talley’s lack of candor to make clear his lack of qualification for a lifetime appointment to the bench. Going forward, the committee must take Mr. Talley’s nomination as a reminder of its responsibility to vet nominees thoroughly and carefully instead of rubber-stamping the president’s selections.
Republicans may already have learned their lesson, as we saw when Mr. Kennedy aggressively quizzed Matthew Spencer Petersen on his courtroom knowledge during Mr. Petersen’s confirmation hearing for a position on the U.S. District Court for the District of Columbia. The nominee proved unable to answer even basic legal questions. Mr. Petersen, currently chair of the Federal Election Commission, may well be an excellent election lawyer. But he is clearly unqualified to be a federal judge.
We hope that Mr. Kennedy continues to hold nominees to the high professional standard appropriate for a lifetime appointment — and that his Republican colleagues, including Mr. Grassley, share that commitment. The committee can start by calling back Thomas Farr, the nominee for the U.S. District Court for the Eastern District of North Carolina, to explain discrepancies regarding his knowledge of a voter-suppression effort by then-Sen. Jesse Helms’s 1990 campaign.“
Here’s how the latest chapter in the saga eventually played out:
Matthew Petersen, a nominee to the federal judiciary, has withdrawn from consideration days after a video clip showed him unable to answer basic questions about legal procedure, the White House confirmed Monday.
Petersen, nominated for a seat on the U.S. District Court for the District of Columbia, is the third Trump judicial pick to withdraw in the past week amid criticism from Democrats and others about their qualifications.
White House spokesman Raj Shah confirmed that Trump had accepted Petersen’s withdrawal but declined to comment further.
The video of Petersen that went viral Thursday captured five minutes of pointed questioning by Sen. John Neely Kennedy (R-La.) at Petersen’s confirmation hearing before the Senate Judiciary Committee the day before.
[That painful exchange between a Trump judicial pick and a GOP senator, annotated]
It was posted on Twitter by Sen. Sheldon Whitehouse (D-R.I.), who wrote that it showed Kennedy asking Petersen “basic questions of law & he can’t answer a single one.”
As of Friday, the White House was standing by Petersen, with a spokesman saying that he was qualified and that “the President’s opponents” were “trying to distract from the record-setting success the President has had on judicial nominations.”
Petersen, a graduate of the University of Virginia Law School, has been a member of the Federal Election Commission since 2008 but has no trial experience. His tenure on the FEC overlapped with that of now-White House counsel Don McGahn for about five years.
“While I am honored to have been nominated for this position, it has become clear to me over the past few days that my nomination has become a distraction — and that is not fair to you or your Administration,” Petersen wrote to Trump in a letter dated Saturday. “I had hoped my nearly two decades of public service might carry more weight than my two worst minutes on television. However, I am no stranger to political realities, and I do not wish to be a continued distraction from the important work of your administration and the Senate.”
Until last week, Trump’s record of getting judicial nominees confirmed by the Senate stood out as a bright spot for a president who has struggled for big wins on Capitol Hill. The Senate has confirmed Supreme Court Justice Neil M. Gorsuch, 12 circuit court judges and six district court judges.
[Trump’s push to fill courts with conservative judges hits first speed bump]
Early last week, Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) told the White House to “reconsider” the nominations of two nominees, Jeff Mateer and Brett Talley, both of whom were reported to have endorsed positions or groups that embrace discrimination. A day later, both nominations were pulled.
Democratic senators had also questioned the qualifications of Talley, Trump’s nominee for a U.S. district court seat in Alabama, and Mateer, who was nominated to serve on the bench in the Eastern District of Texas.
During Wednesday’s confirmation hearing, Kennedy started by asking Petersen and four other nominees who appeared with him, “Have any of you not tried a case to verdict in a courtroom?”
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Read the complete article at the link.
Who’s the real loser here? Well, it goes without saying that as with virtually every piece of the “Trump Agenda” the American people are the real losers. Handing out lifetime judicial appointments to unqualified political hacks — that’s exactly what happens in the Third World Dictatorships and Banana Republics that I used to hear about on a regular basis on my asylum docket. Sad to think that we are becoming one of “them.”
Beyond that, Chairman “Chuckles the Clown” Grassley is the other big loser. Sure, this batch was cut off. But, that Trump would dare send folks like this up for confirmation means that he firmly believes that “Chuckles” and his GOP stooges would affirm a piece of rotten horse meat if that’s what Trump sent them. In other words, he believes that “Chuckles” is weak and intimidated and ultimately will do Trump’s bidding.
And, Trump might be right about that. Witness that very few GOP legislators consistently are willing to stand up to Trump when it counts. Even those who are somewhat critical, eventually fold their tents and “go along to get along” as demonstrated by the tax bill and the spineless performances of alleged “heros” like Senator Susan Collins, Senator Lisa Murkowski, and Senator Marco Rubio. Even Jeff Flake, as he departs the scene, appears willing to screw America to make the rich richer and the poor poorer.
Although I wasn’t the first, I certainly recognized Trump’s “Beclowning” of America early on. Never heard of a country governed by a Clown (even a dangerous and dishonest one) being a major positive force in world history. Wake up before it’s too late!
JUST SAY NO to more Clowns in Government! And, that absolutely “starts at the top!” 🤡
PWS
12-18-17
Lindsay writes:
“Attorney General Jeff Sessions delivered remarks to the Executive Office of Immigration Review (EOIR) on Oct. 12, arguing that the U.S. asylum system is overburdened with fraud and abuse. Sessions misrepresented the system, relying on virtually no data to reach his, frankly, ignorant conclusions.
. . . .
Fifth, Sessions suggests that because some individuals who pass credible fear interviews fail to apply for asylum, they are fraudulently seeking asylum. This fails to recognize that individuals who pass a credible fear interview have been released with very little orientation as to what to expect next.
For example, asylum law requires that an official application be filed in immigration court within one year of the asylum seeker’s last entry into the United States. U.S. officials, however, fail to tell individuals who pass a credible fear interview about this deadline.
Having just articulated in detail, to a U.S. official, why they are afraid to return to their home country, many asylum seekers believe they have “applied” for asylum, and some even believe they have been granted upon release.
Several groups filed suit against DHS last June based on the lack of notice of the one year filing deadline given to asylum seekers and also the impossibility of filing because the immigration courts are so backlogged that an applicant often cannot file in open court within a year.
Sessions also neglects to mention that asylum seekers face a crisis in legal representation. According to a national study of cases from 2007-2012, only 37 percent of immigrants were represented in immigration court. Representation can make all the difference. Without representation, asylum seekers lack an understanding of what is happening in their case and may be too fearful to appear without an attorney. Their number one priority, remember, is to avoid being sent back to a place where they face persecution and/or torture or death.
Finally, the asylum process itself is complicated and the I-589 form to apply is only available in English. This is overwhelming for a pro se applicant who lacks the ability to read and write in English.
Attorney General Sessions’ remarks should not be surprising, certainly not to any who are familiar with his anti-immigrant track record. It remains disappointing, however, that the nation’s top law enforcement official should politicize and attempt to skew our vision of the asylum-seeking process. As a nation founded by immigrants fleeing religious persecution, it is profoundly disturbing that the current Attorney General sees fit to an attack on asylum seekers and to undermine America’s history of compassionate protection of refugees.
Professor Lindsay M. Harris is co-director of the Immigration & Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.”
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Go on over to The Hill at the above link and read the rest of Lindsay’s article (containing her points 1-4, which I omitted in this excerpt).
I can confirm that those who have passed the “credible fear” process often mistakenly believe that they “applied for asylum” before the Asylum Office. I also found that few unrepresented respondents understood the difference between required reporting to the DHS Detention Office and reporting to Immigration Court.
Moreover, given the “haste makes waste” procedures applied to recent border arrivals, the addresses reported to EOIR by DHS or entered into the EOIR system were often inaccurate. Sometimes, I could tell they were inaccurate just from my own knowledge of the spelling and location of various streets and jurisdictions in Northern Virginia. Another time, one of the Arlington Immigration court’s “eagle eyed” Court Clerks spotted that a number of supposed “in absentias” charged to Arlington were really located in the state of “PA” rather than “VA” which had incorrectly been entered into our system. No wonder these were coming back as “undeliverable!”
Therefore, I would consider Sessions’s claim of a high “no show” rate to be largely bogus until proven otherwise. My experience was that recently arrived women, children, and families from the Northern Triangle appeared well over 90% of the time if they 1) actually understood the reporting requirements, and 2) actually got the Notice of Hearing. Those who were able to obtain lawyers appeared nearly 100% of the time.
This strongly suggests to me that if Sessions really wanted to address problems in Immigration Court he would ditch the knowingly false anti-asylum narratives and instead concentrate on: 1) insuring that everyone who “clears” the credible fear process has his or her Immigration Court hearing scheduled in a location and a manner that gives them the maximum possible access to pro bono legal representation; 2) insuring that appropriate explanations and warnings regarding failure to appear are given in English and Spanish, and 3) a “quality control initiative” with respect to entering addresses at both DHS and EOIR and serving Notices to Appear.
Jeff Sessions also acted totally inappropriately in delivering this highly biased, enforcement-oriented, political address to the EOIR. Although housed within the DOJ, EOIR’s only functions are quasi-judicial — fairly adjudicating cases. In the words of the Third Circuit Court of Appeals in a recent case the function of the Immigration Judiciary is “preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations.” Alimbaev v. Att’y Gen. of U.S., 872 F.3d 188, 190 (3rd Cir. 2017).
Consequently, the only appropriate remarks for an Attorney General to make to EOIR and the Immigration Judiciary would be to acknowledge the difficulty of their judicial jobs; thank them for their service; encourage them to continue to render fair, impartial, objective, scholarly, and timely decisions; and explain how he plans to support them by providing more resources for them to do their important jobs. That’s it!!
What is totally inappropriate and probably unethical is for the Attorney General to deliver a “pep talk” to judges spouting the “party line” of one of the parties in interest (the DHS), setting forth inaccurate and unsupported statements of the law, and demeaning the other party to the judicial proceedings — the immigrant respondents and their attorneys.
Although I personally question their ultimate constitutionality under the Due Process Clause, the Attorney General does have two established channels for conveying his views on the law to the EOIR: 1) by incorporating them in regulations issued by the DOJ after public notice and comment; and 2) by “certifying” BIA decisions to himself and thereby establishing his own case precedents which the BIA and Immigration Judges must follow.
Troublesome as these two procedures might be, they do have some glaring differences from “AG speeches and memos.” First, public parties have a right to participate in both the regulatory and the precedent adjudication process, thus insuring that views opposed to those being advanced by the DHS and the Attorney General must be considered and addressed. Second, in both cases, private parties may challenge the results in the independent Article III Courts if they are dissatisfied with the Attorney General’s interpretations. By contrast, the “opposing views” to Session’s anti-asylum screed did not receive “equal time and access” to the judicial audience.
Sessions’s recent disingenuous speech to EOIR was a highly inappropriate effort to improperly influence and bias supposedly impartial quasi-judicial officials by setting forth a “party line” and not very subtilely implying that those who might disagree with him could soon find themselves “out of favor.” That is particularly true when the speech was combined with outrageous discussions of how “performance evaluations” for judges could be revised to contain numerical performance quotes which have little or nothing to do with fairness and due process.
Jeff Sessions quite obviously does not see the U.S. Immigration Courts as an independent judiciary charged with delivering fair and impartial justice to immigrants consistent with the Due Process clause of our Constitution. Rather, he sees Immigration Judges and BIA Appellate Judges as “adjuncts” to DHS enforcement — there primarily to insure that those apprehended by DHS agents or who turn themselves in to the DHS to apply for statutory relief are quickly and unceremoniously removed from the U.S. with the mere veneer, but not the substance, of Due Process.
Due process will not be realized in the U.S. Immigration Courts until they are removed from the DOJ and established as a truly independent Article I court.
PWS
10-31-17
Ronald A. Klain writes in the Washington Post:
“Progressives breathed a sigh of relief recently when Justice Anthony M. Kennedy decided to remain on the Supreme Court for presumably at least one more year. But no matter how long Kennedy stays, a massive transformation is underway in how our fundamental rights are defined by the federal judiciary. For while President Trump is incompetent at countless aspects of his job, he is proving wildly successful in one respect: naming youthful conservative nominees to the federal bench in record-setting numbers.
Trump’s predecessors all slowly ramped up their judicial nominations during their first six months in office. Ronald Reagan named Sandra Day O’Connor to the Supreme Court and made five lower-court nominations in that period; George H.W. Bush made four lower-court nominations; Bill Clinton named Ruth Bader Ginsburg to the high court but no lower-court judges; and George W. Bush named four lower-court judges who were processed by the Senate (plus more than a dozen others sent back to him and later renominated). The most successful early actor, Barack Obama, named Sonia Sotomayor to the Supreme Court and nine lower-court judges who were confirmed.
What about Trump? He not only put Neil M. Gorsuch in the Supreme Court vacancy created by Merrick Garland’s blocked confirmation, but he also selected 27 lower-court judges as of mid-July. Twenty-seven! That’s three times Obama’s total and more than double the totals of Reagan, Bush 41 and Clinton — combined. For the Courts of Appeals — the final authority for 95 percent of federal cases — no president before Trump named more than three judges whose nominations were processed in his first six months; Trump has named nine. Trump is on pace to more than double the number of federal judges nominated by any president in his first year.
Moreover, Trump’s picks are astoundingly young. Obama’s early Court of Appeals nominees averaged age 55; Trump’s nine picks average 48. That means, on average, Trump’s appellate court nominees will sit through nearly two more presidential terms than Obama’s. Many of Trump’s judicial nominees will be deciding the scope of our civil liberties and the shape of civil rights laws in the year 2050 — and beyond.
How conservative are Trump’s picks? Dubbed “polemicists in robes” in a headline on a piece by Slate’s Dahlia Lithwick, Trump’s nominees are strikingly . . . Trumpian. One Trump nominee blogged that Kennedy was a “judicial prostitute” for trying to find a middle ground on the court, and said that he “strongly disagree[d]” with the court’s decision striking down prosecution of gay people under sodomy laws. Another equated the Supreme Court’s decision in Roe v. Wade, upholding a woman’s right to choose to have an abortion, to the court’s 19th-century Dred Scott finding that black people could not be U.S. citizens. Another advocated an Alabama law that denied counsel to death-row inmates.
Progressives who are increasingly counting on the federal courts to be a bulwark against Trump’s initiatives will increasingly find those courts stocked with judges picked by, and in sync with, Trump. With federal judges serving for life, one might think that the process of dramatically changing the makeup of the federal judiciary would take a long time. But given Trump’s unprecedented pace, in just one more year, one-eighth of all cases filed in federal court will be heard by a judge he appointed.
With the abolition of the filibuster, Trump’s nominees need only the votes of Republican senators to win confirmation. Yes, if Kennedy resigns and Trump nominates someone who might overturn Roe v. Wade, pro-choice Republicans could balk; and a few of Trump’s most outrageous lower-court nominations might be unnerving enough to attract GOP opposition. But the reality is that most of Trump’s rapid-fire, right-wing, youthful lower-court nominations are poised to make it to the bench. ”
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Read the rest of Klain’s article at the link.
If you want to have a say in the shaping of the Federal Judiciary, you have to win the White House, the Senate, or, like the GOP did, both. Elections have consequences, particularly for the losers.
PWS
07-20-17
HuffPost reports:
“WASHINGTON ― Most days, it seems like President Donald Trump is sabotaging his own agenda, one tweet at a time. But the White House has been quietly plowing ahead in one area that will affect generations of people: the courts.
Trump is unbelievably well-positioned to fill up federal courts with lifetime judges. He inherited a whopping 108 court vacancies when he became president ― double the number of vacancies President Barack Obama inherited when he took office.
The reason Trump gets to fill so many seats is partly because Obama was slow to fill court vacancies early in his tenure. But the main reason is Republicans’ years-long strategy of denying votes to Obama’s court picks. They refused to recommend judicial nominees, filibustered others, used procedural rules to drag out the confirmation process and, by Obama’s final year, blocked nominees they had recommended just to prevent him from filling more seats.
Court vacancies have only increased since Trump took office, as older judges have steadily retired. Trump has already nominated more than three times as many judges as Obama had at this point in his presidency ― 21 compared with six for Obama.
With Republicans in control of the Senate, Trump’s court picks will have a relatively easy time getting confirmed, too. The chairman of the Judiciary Committee, Sen. Chuck Grassley (R-Iowa), has hinted that he may tweak the committee’s rules to make it easier for Republicans to advance some of Trump’s nominees without Democratic support. And once nominees make it to the Senate floor, it takes only 51 votes to advance their nominations and confirm them. There are 52 Republicans, which means they could confirm all of Trump’s district and circuit court nominees without a single Democratic vote.
It used to take 60 votes to advance district and circuit court nominees, but Senate Democrats changed the filibuster rule in 2013 in order to get around a Republican blockade on Obama’s court picks. Now Trump benefits from that change.
It is, in effect, the perfect combination of factors for conservatives eager to tilt the nation’s courts to the right. Trump has piles of seats to fill, a list of nominees recommended to the White House by outside conservative groups, and a Republican Senate eager to confirm them.
“It is a huge opportunity,” said Carl Tobias, a University of Richmond law professor who specializes in judicial nominations. “The question is how quickly they will move in the future. A lot of what they’ve done so far is low-hanging fruit and pretty easy to do.”
A good chunk of Trump’s judicial nominees so far have come through recommendations from The Federalist Society, a right-wing legal organization. Its executive vice president, Leonard Leo, was instrumental in helping the White House put Neil Gorsuch on the Supreme Court. He recommended Gorsuch to Trump last fall and took a temporary leave from his job earlier this year to help prepare Gorsuch for his Senate confirmation hearing.
Leo also gave Trump a list of names of potential judicial picks that conservatives would like to see on the federal bench. Trump has already nominated several of them.
One of them is John Bush, a Kentucky lawyer who runs a local chapter of The Federalist Society. Trump nominated Bush, 52, last month to a lifetime post on the 6th U.S. Circuit Court of Appeals. Progressive groups are vowing to fight his confirmation given some of his past remarks, which include comparing abortion to slavery and referring to them as “the two greatest tragedies in our country.” Bush has also said he strongly disagrees with same-sex marriage, mocked climate change and proclaimed “the witch is dead” when he thought the Affordable Care Act might not be enacted.
Damien Schiff, also a member of The Federalist Society, is Trump’s nominee to the U.S. Court of Federal Claims. The 37-year-old attorney at the conservative Pacific Legal Foundation would serve a 15-year term if confirmed. He came under fire for calling Supreme Court Justice Anthony Kennedy “a judicial prostitute” on a blog several years ago. He has also criticized efforts to prevent bullying of LGBTQ students, referring to messages of equality as “teaching ‘gayness’ in schools,” and has argued that states should be allowed to criminalize “consensual sodomy.”
Both of those nominees had their Senate confirmation hearings last week. They’re now waiting for the Judiciary Committee to reconvene and vote out their nominations.
It’s not unusual for a president to consult with outside groups for potential judicial nominees. What’s different, says Tobias, is how heavily Trump seems to be relying on this particular group versus working directly with senators for judicial recommendations from their states, which is the standard path.
“I think Leonard Leo is just feeding him those people,” he said. “There are real questions about that, whether that’s good for the courts and gets us the finest nominees.”
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Read the entire article at the above link.
Remember, folks, these are lifetime appointments, so although, one way or another, Trump will eventually be gone, his judges will be around for decades. And, because Democrats can’t win Senate elections, they have lost their power to exert any influence whatsoever over Trump’s choices.
PWS
06-22-17
