Justice Brett Kavanaugh – immigrationcourtside.com

🤯 SUPREMES TIRING OF GOP RIGHTY EXTREMIST JUDGES? — MAYBE, BUT DON’T COUNT ON IT! — U.S. v. Texas Was A Refreshing 8-1 (x Alito) Beatdown Of “Trump Hack” Judge Drew Tipton — Yet, Inexplicably, The Court Had Allowed Tipton & His GOP Nativist AG Cronies To Run Roughshod Over Immigration Policy For More Than A Year, Damaging Democracy & Humanity In The Process! 🏴‍☠️

Kangaroos — Trump & McConnell stuck a mob of these unqualified righty extremists on the lower Federal Courts. Even a super conservative Supremes might be tiring of the overt bias and lack of basic judicial competence exhibited by these judicial hacks. https://www.flickr.com/photos/rasputin243/
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https://www.vox.com/scotus/2023/6/23/23771310/supreme-court-united-states-texas-ice-immigration-drew-tipton-brett-kavanaugh

Ian Millhiser reports for Vox:

More than a year ago, a Trump-appointed judge named Drew Tipton effectively seized control of parts of Immigration and Customs Enforcement (ICE), the federal agency that enforces immigration laws within the United States. On Friday, the Supreme Court ended Tipton’s reign over ICE’s enforcement priorities.

The Court’s decision in United States v. Texas was 8–1, with all eight justices in the majority concluding that Tipton didn’t even have jurisdiction to hear this case in the first place — though they split 5-3 on why Tipton lacked jurisdiction. Only Justice Samuel Alito, the Court’s most reliable Republican partisan, dissented.

The case concerned 2021 guidelines, issued by Secretary of Homeland Security Alejandro Mayorkas, that instructed ICE agents to prioritize enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”

Two red states, Texas and Louisiana, sued, essentially arguing that ICE must arrest more immigrants who do not fit these criteria. Moreover, because Texas federal courts often allow plaintiffs to choose which judge will hear their case by deciding to file their lawsuits in specific parts of the state, these two red states chose Tipton — a staunchly anti-immigrant judge who has been a thorn in the Biden administration’s side since the first week of his presidency — to hear this lawsuit.

In one of the most predictable events in the US judiciary’s history, Tipton promptly obliged the two states by striking down Mayorkas’s guidelines.

Justice Brett Kavanaugh’s opinion in Texas holds that no federal judge should have ever even considered this case. As Kavanaugh explains, the plaintiff states “have not cited any precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or prosecution policies so that the Executive Branch makes more arrests or initiates more prosecutions.” To the contrary, the Court held in Linda R. S. v. Richard D. (1973) that “a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”

. . . .

That said, the decision does contain some language that anti-immigrant judges may latch onto to impose their preference on the country — including a paragraph that reads like it was written to preserve lawsuits challenging the Obama-era Deferred Action for Childhood Arrivals (DACA) program.

And there is one other very frustrating thing about this case. Although the Supreme Court eventually ruled that Tipton is not the head of ICE and cannot decide who its agents arrest, it rejected a request to temporarily block Tipton’s decision last July.

. . . .

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Read the complete article at the link.

Compare the Supreme’s inexplicable rejection of the Biden Administration’s compelling request for a stay of Tipton’s outrageous interference (which had been allowed to stand by a the 5th Circuit in a stunning dereliction of duty) with their overly generous treatment of totally unjustified stay requests by Trump scofflaws during the last Administration. See, e.g., https://immigrationcourtside.com/2020/10/13/🏴‍☠️👎🏻only-the-beginning-supremes-again-interfere-with-lower-court-ruling-in-aid-of-trumps-census-undercount-scheme-commun/.

🇺🇸 Due Process Forever!

PWS

06-26-23

😎⚖️🗽👍UNEXPECTED BOOST FOR DUE PROCESS & HUMANITY! — SUPREMES ALLOW BIDEN TO TERMINATE SCOFFLAW, CRUEL, FAILED “REMAIN IN MEXICO” TRAVESTY (A/K/A “LET ‘EM DIE ☠️⚰️IN MEXICO”) INITIATED BY TRUMP! — Biden v. Texas, Narrow 5-4 Majority Thwarts White Nationalist Initiative — C.J. Roberts (Opinion), joined by Justices Kavanaugh, Breyer, Sotomayor, & Kagan Save Humanity, Rule of Law, For Now!

Here’s a link to the decision:

https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf

Here’s the Syllabus by Court staff:

(Slip Opinion) OCTOBER TERM, 2021 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BIDEN ET AL. v. TEXAS ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 21–954. Argued April 26, 2022—Decided June 30, 2022

In January 2019, the Department of Homeland Security began to implement the Migrant Protection Protocols (MPP). Under MPP, certain non-Mexican nationals arriving by land from Mexico were returned to Mexico to await the results of their removal proceedings under section 1229a of the Immigration and Nationality Act (INA). MPP was implemented pursuant to a provision of the INA that applies to aliens “arriving on land . . . from a foreign territory contiguous to the United States” and provides that the Secretary of Homeland Security “may return the alien to that territory pending a proceeding under section 1229a.” 8 U. S. C. §1225(b)(2)(C). Following a change in Presidential administrations, the Biden administration announced that it would suspend the program, and on June 1, 2021, the Secretary of Homeland Security issued a memorandum officially terminating it.

The States of Texas and Missouri (respondents) brought suit in the Northern District of Texas against the Secretary and others, asserting that the June 1 Memorandum violated the INA and the Administrative Procedure Act (APA). The District Court entered judgment for respondents. The court first concluded that terminating MPP would violate the INA, reasoning that section 1225 of the INA “provides the government two options” with respect to illegal entrants: mandatory detention pursuant to section 1225(b)(2)(A) or contiguous-territory re- turn pursuant to section 1225(b)(2)(C). 554 F. Supp. 3d 818, 852. Be- cause the Government was unable to meet its mandatory detention obligations under section 1225(b)(2)(A) due to resource constraints, the court reasoned, terminating MPP would necessarily lead to the systemic violation of section 1225 as illegal entrants were released into the United States. Second, the District Court concluded that the June 1 Memorandum was arbitrary and capricious in violation of the APA.

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BIDEN v. TEXAS Syllabus

The District Court vacated the June 1 Memorandum and remanded to DHS. It also imposed a nationwide injunction ordering the Government to “enforce and implement MPP in good faith until such a time as it has been lawfully rescinded in compliance with the APA and until such a time as the federal government has sufficient detention capacity to detain all aliens subject to mandatory detention under [section 1225] without releasing any aliens because of a lack of detention re- sources.” Id., at 857 (emphasis in original).

While the Government’s appeal was pending, the Secretary released the October 29 Memoranda, which again announced the termination of MPP and explained anew his reasons for doing so. The Government then moved to vacate the injunction on the ground that the October 29 Memoranda had superseded the June 1 Memorandum. But the Court of Appeals denied the motion and instead affirmed the District Court’s judgment in full. With respect to the INA question, the Court of Ap- peals agreed with the District Court’s analysis that terminating the program would violate the INA, concluding that the return policy was mandatory so long as illegal entrants were being released into the United States. The Court of Appeals also held that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th 928, 951.

Held: The Government’s rescission of MPP did not violate section 1225 of the INA, and the October 29 Memoranda constituted final agency action. Pp. 8–25.

(a) Beginning with jurisdiction, the injunction that the District Court entered in this case violated 8 U. S. C. §1252(f )(1). See Garland v. Aleman Gonzalez, 596 U. S. ___, ___. But section 1252(f )(1) does not deprive this Court of jurisdiction to reach the merits of an appeal even where a lower court enters a form of relief barred by that provision. Section 1252(f )(1) withdraws a district court’s “jurisdiction or authority” to grant a particular form of relief. It does not deprive lower courts of all subject matter jurisdiction over claims brought under sections 1221 through 1232 of the INA.

The text of the provision makes that clear. Section 1252(f )(1) deprives courts of the power to issue a specific category of remedies: those that “enjoin or restrain the operation of ” the relevant sections of the statute. And Congress included that language in a provision whose title—“Limit on injunctive relief ”—makes clear the narrowness of its scope. Moreover, the provision contains a parenthetical that explicitly preserves this Court’s power to enter injunctive relief. If section 1252(f )(1) deprived lower courts of subject matter jurisdiction to adjudicate any non-individual claims under sections 1221 through 1232, no such claims could ever arrive at this Court, rendering the specific carveout for Supreme Court injunctive relief nugatory.

Cite as: 597 U. S. ____ (2022) 3 Syllabus

Statutory structure likewise confirms this conclusion. Elsewhere in section 1252, where Congress intended to deny subject matter jurisdiction over a particular class of claims, it did so unambiguously. See, e.g., §1252(a)(2) (entitled “Matters not subject to judicial review”). Finally, this Court previously encountered a virtually identical situation in Nielsen v. Preap, 586 U. S. ___, and proceeded to reach the merits of the suit notwithstanding the District Court’s apparent violation of section 1252(f )(1). Pp. 8–13.

(b) Turning to the merits, section 1225(b)(2)(C) provides: “In the case of an alien . . . who is arriving on land . . . from a foreign territory contiguous to the United States, the [Secretary] may return the alien to that territory pending a proceeding under section 1229a.” Section 1225(b)(2)(C) plainly confers a discretionary authority to return aliens to Mexico. This Court has “repeatedly observed” that “the word ‘may’ clearly connotes discretion.” Opati v. Republic of Sudan, 590 U. S. ___, ___.

Respondents and the Court of Appeals concede that point, but urge an inference from the statutory structure: because section 1225(b)(2)(A) makes detention mandatory, they argue, the otherwise- discretionary return authority in section 1225(b)(2)(C) becomes mandatory when the Secretary violates that mandate. The problem is that the statute does not say anything like that. The statute says “may.” If Congress had intended section 1225(b)(2)(C) to operate as a mandatory cure of any noncompliance with the Government’s detention obligations, it would not have conveyed that intention through an unspoken inference in conflict with the unambiguous, express term “may.” The contiguous-territory return authority in section 1225(b)(2)(C) is discretionary—and remains discretionary notwithstanding any violation of section 1225(b)(2)(A).

The historical context in which section 1225(b)(2)(C) was adopted confirms the plain import of its text. Section 1225(b)(2)(C) was added to the statute more than 90 years after the “shall be detained” language that appears in section 1225(b)(2)(A). And the provision was enacted in response to a BIA decision that had questioned the legality of the contiguous-territory return practice. Moreover, since its enactment, every Presidential administration has interpreted section 1225(b)(2)(C) as purely discretionary, notwithstanding the consistent shortfall of funds to comply with section 1225(b)(2)(A).

The foreign affairs consequences of mandating the exercise of contiguous-territory return likewise confirm that the Court of Appeals erred. Interpreting section 1225(b)(2)(C) as a mandate imposes a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico, one that Congress likely did not intend section 1225(b)(2)(C) to impose. And finally, the availability of parole as an

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BIDEN v. TEXAS Syllabus

alternative means of processing applicants for admission, see 8 U. S. C. §1182(d)(5)(A), additionally makes clear that the Court of Ap- peals erred in holding that the INA required the Government to continue implementing MPP. Pp. 13–18.

(c) The Court of Appeals also erred in holding that “[t]he October 29 Memoranda did not constitute a new and separately reviewable ‘final agency action.’ ” 20 F. 4th, at 951. Once the District Court vacated the June 1 Memorandum and remanded to DHS for further consideration, DHS had two options: elaborate on its original reasons for taking action or “ ‘deal with the problem afresh’ by taking new agency action.” Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___. The Secretary selected the second option from Regents: He accepted the District Court’s vacatur and dealt with the problem afresh. The October 29 Memoranda were therefore final agency action for the same reasons that the June 1 Memorandum was final agency action: Both “mark[ed] the ‘consummation’ of the agency’s decisionmaking process” and resulted in “rights and obligations [being] determined.” Bennett v. Spear, 520 U. S. 154, 178.

The various rationales offered by respondents and the Court of Ap- peals in support of the contrary conclusion lack merit. First, the Court of Appeals erred to the extent it understood itself to be reviewing an abstract decision apart from the specific agency actions contained in the June 1 Memorandum and October 29 Memoranda. Second, and relatedly, the October 29 Memoranda were not a mere post hoc rationalization of the June 1 Memorandum. The prohibition on post hoc rationalization applies only when the agency proceeds by the first option from Regents. Here, the Secretary chose the second option from Re- gents and “issue[d] a new rescission bolstered by new reasons absent from the [June 1] Memorandum.” 591 U. S., at ___. Having returned to the drawing table, the Secretary was not subject to the charge of post hoc rationalization.

Third, respondents invoke Department of Commerce v. New York, 588 U. S. ___. But nothing in this record suggests a “significant mis- match between the decision the Secretary made and the rationale he provided.” Id., at ___. Relatedly, the Court of Appeals charged that the Secretary failed to proceed with a sufficiently open mind. But this Court has previously rejected criticisms of agency closemindedness based on an identity between proposed and final agency action. See Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U. S. ___, ___. Finally, the Court of Appeals erred to the extent it viewed the Government’s decision to appeal the District Court’s in- junction as relevant to the question of the October 29 Memoranda’s status as final agency action. Nothing prevents an agency from under- taking new agency action while simultaneously appealing an adverse

Cite as: 597 U. S. ____ (2022) 5 Syllabus

judgment against its original action. Pp. 18–25. 20 F. 4th 928, reversed and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. KAVANAUGH, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which THOMAS and GORSUCH, JJ., joined. BARRETT, J., filed a dissenting opinion, in which THOMAS, ALITO, and GORSUCH, JJ., joined as to all but the first sentence.

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Credit where credit is due. At least in this particular case, Chief Justice Roberts and the much-maligned Justice Kavanaugh probably have saved many lives of already-born humans.

Breyer’s “Last Hurrah.” I think this was Justice Breyer’s last case, fittingly a victory for reasonableness and humanity. As of noon today, he was succeeded by Justice Ketanj Brown Jackson, the first African American female Justice! Good luck to her. I hope she can convince her right-wing colleagues to “do the right thing” on at least a few cases!

Not out of the woods yet? The case now goes back to to the 5th Circuit and a Trumpy USDJ — not the best forum for asylum applicants seeking justice.

Will they do better? Ending the toxic, inhumane, and ineffective “Remain in Mexico Program” is one thing. Replacing it with a viable asylum adjudication system that will actually efficiently grant protection to the many refugees at our border who have been victims of a biased, anti-asylum, non-expert decision-making process is quite another. It starts with tossing the BIA and the many EOIR Judges who aren’t following asylum law and aren’t able to grant asylum and replacing them with real expert judges who can get the job done, positively guide Asylum Officers, and make sure they follow proper legal interpretations. To date, that’s been something that Garland and the Administration have been unwilling and/or unable to do — at least to the extent required to make due process, fundamental fairness, and the rule of law functional at our borders.

Glimmer of hope (maybe)? In her dissent, Justice Amy Coney Barrett went to great lengths to come up with reasons not to take jurisdiction over this “life or death” matter in its current posture. But, unlike the other three dissenters, she stated that she agreed with the majority “on the merits” of the case. That makes it at least possible that there could be as many as six potential votes for fair and humane treatment of asylum applicants by the Administration if the jurisdictional hurdle can be overcome. No guarantees. But something to think about — particularly in light of Alito’s snarky, White Nationalist nonsense and anti-immigrant myths reflected in his separate dissenting opinion.

Alioto defines “rock bottom” judicial performance. For example, in the first paragraph of his dissent, Alito says this:

In fiscal year 2021, the Border Patrol reported more than 1.7 million encounters with aliens along the Mexican border.1 When it appears that one of these aliens is not admissible, may the Government simply release the alien in this country and hope that the alien will show up for the hearing at which his or her entitlement to remain will be decided?

First he mis-states the law. By no means are all individuals who come to the border or are apprehended in the vicinity thereof entitled to “hearings” on admissibility. All of those without entry documents are subject to summary removal by a DHS Enforcement Agent. Only those who claim a fear of return to their home countries are entitled to an expeditious review of their claims by a (supposedly) well-trained Asylum Officer. Further, only those who establish the necessary “credible fear” of harm (or in some cases a “reasonable fear”) are entitled to have their cases for asylum determined on the merits by either an Asylum Officer or an EOIR Immigration Judge (or both). So, many of those appearing at the border are summarily removed without any hearings at all.

Thousands of those who pass credible fear and are awaiting “merits hearings” are imprisoned in DHS facilities in conditions that probably would fail constitutional scrutiny if applied to convicted felons. Those poor conditions are intended, at least in part, to demoralize and coerce individuals into abandoning claims for protection. They also exponentially decrease the chances of receiving competent pro bono representation and documenting and presenting their cases for life-preserving protection. This is significant, because they too often face EOIR judges with questionable expert judicial qualifications who are essentially “programmed to deny asylum.” Indeed, a “Garland gimmick” for recent arrivals — so-called “expedited dockets” — produced nearly 100% asylum denials as compared with the nationwide rate of 67%. For years, ICE detention centers, many of them operated by private contractors, have been notorious as places “where asylum cases go to die.”

Contrary to the bogus implication of Alito’s statement that one has to “hope” that individuals show up for hearings, many have immigration bonds — some punatively high. When given a chance to obtain qualified representation, and thereby to understand the system and their obligations thereunder, the vast majority of asylum applicants voluntarily appear at their hearings (some many times due to the EOIR practice of “Aimless Docket Reshuffling”), win or lose. And, perhaps not surprisingly, they succeed in winning their cases at rates that are many times higher than those forced to proceed without representation.

Indeed, a government actually interested in making the legal system work, rather than ginning up nativist myths about asylum seekers, would cut the “cruel and inhumane gimmicks” like “Remain in Mexico” and detention in the “New American Gulag” (NAG”) and instead invest in training competent pro bono or “low bono” representatives, temporarily resettling applicants to those jurisdictions with good NGOs and where the Immigration Judges are known to be scholarly and fair in evaluating asylum cases, and replacing poorly qualified Immigration Judges with experts able to competently perform these life or death functions at the “retail level” of our justice system in a fair and efficient matter consistent with due process.

Alito also repeats, apparently for prejudicial dramatic effect, the oft-used but potentially misleading figure of 1.7 million “encounters” by CBP. But, since the legal asylum system at our border was improperly dismantled by the Trump Administration, many of these represent the same individual or individuals, repeatedly encountered and illegally returned without any process whatsoever, who seek only the legal forum to present their claim to authorities to which they are entitled under both domestic and international law. This right has been systematically denied to them by both the Trump and Biden Administrations and by mal-functioning Federal Judges, at all levels, who have failed to uphold the rule of law as it applies to the most vulnerable among us. Additionally, a knowledgeable jurist would take any statistics furnished by the notoriously unreliable DHS with a “grain of salt.”

The lack of understanding of how immigration law operates, the nativist-driven misinterpretations by the Trump Administration embodied in this dissent, and the lack of intellectual integrity in furthering nativist myths and intentional exaggerations to describe a group of individuals who merely seek legal justice under both our laws and international standards is a graphic illustration of who does not belong on our highest Court. If we are really committed to equal justice and fundamental fairness in the American justice system, we should insist that all of those nominated for our Supreme Court demonstrate significant experience representing individual foreign nationals in the Immigration Courts — the “life or death retail level” of our justice system.

Right now, those so-called “courts” are an embarrassing and dysfunctional “parody of justice” to which neither Justice Alito nor any of his colleagues would want to submit their own lives and futures or those of anyone they truly cared about. That’s the very definition of dehumanization and “Dred Scottification of the other” that Justice Alito seems so curiously eager to advance. Perhaps, that’s because he lacks the necessary empathy and perspective to see life from “the other side of the bench” as the rest of humanity does.

I’d like to think that Alito is capable of change and growth. Most, if not all, humans are. After all, he’s appointed for life, so he isn’t going anywhere soon. But, I won’t hold my breath.

🇺🇸Due Process Forever!

PWS

06-29-30

BARTON v. BARR: “J.R. Five” Jettisons Principles, Fudges Facts In Pathetic Attempt To Avoid Moral Responsibility For Advancing Trump Administration’s White Nationalist, Anti-Immigrant Agenda — Their Treachery & Cowardice Will NOT be Forgotten!

https://apple.news/A0a8Ej93WTp66f3Ujt4-_Ug

Jay Willis writes for The Appeal:

. . . .

Two things stand out about this outcome: first, the remarkable philosophical flexibility of the Court’s conservatives when their political allies appear before them. The case is only the latest instance in which they have tacitly endorsed some of the president’s more aggressive legal arguments, legitimizing his use of anti-immigrant fearmongering as public policy.

As Professor Nancy Morawetz detailed at the ImmigrationProf Blog, the majority reached its conclusion by selectively applying rules for analyzing vague laws—rules that, if applied to Barton’s case, might have led to a different result. Conservative judges often argue for resolving ambiguities by focusing on the plain meaning of statutory text. As a result, they are supposedly reluctant to assume that any statutory language is redundant or superfluous. (When the Wisconsin Supreme Court’s conservatives decided Democratic Governor Tony Evers couldn’t postpone in-person voting during the COVID-19 pandemic, for example, they leaned heavily on this principle.) But here, the majority’s reasoning required treating part of the text as redundant. Kavanaugh barely bothered to address this divergence from prevailing conservative judicial philosophy: He simply stated that “redundancies are common in statutory drafting,” and that in this case, “the better overall reading of the statute contains some redundancy.”

“That is not the argument you would expect from the conservative wing of the Court,” Professor Morawetz wrote. “It is hard to walk away without the sense that there are different statutory interpretation rules at work for those who are powerful and those who are not.”

The majority and dissenting opinions also contrast sharply in the extent to which the justices considered the impact of their decision on Barton, his family, and other people like Barton whose fates this case determined. The majority begins with a recitation of his involvement with the criminal legal system, noting his convictions “on three separate occasions spanning 12 years.” Later, Kavanaugh takes care to name the substances—methamphetamine, cocaine, and marijuana—involved in the drug arrests, and describes the gun and assault convictions using lurid, cinematic language, explaining that Barton and a friend “shot up” an ex-girlfriend’s house. (This phrase is decidedly not a legal term of art.) Read together, these rhetorical flourishes evoke a familiar stereotype: a scary, drug-involved career criminal who is liable to start shooting at any moment.

The Barton described in Sotomayor’s dissent, which all four liberal justices signed, sounds like a different person altogether. She carefully lays out the facts of Barton’s early life, personal challenges, and subsequent accomplishments—valuable context that Kavanaugh and company conspicuously omitted. (The details about his background included in the beginning of this article come primarily from her opinion.) For example, it was Barton’s friend, Sotomayor notes, who actually fired at the ex-girlfriend’s house. In court, Barton testified that he didn’t know the friend even had a gun, let alone planned to shoot it.

The rest of the dissent fills in more of the blanks left by the majority. She writes about Barton’s stints in boot camp and rehab, and praises him for getting his GED diploma, graduating from college, and leading “a law-abiding life.” She notes that his drug convictions were for possession, not distribution, and linked them to his since-resolved dependency. She frames Barton’s three convictions against the backdrop of his 30 years in the United States, not the 12-year period in which they occurred. And she quotes the immigration judge who evaluated Barton’s initial application for mercy and badly wanted to approve it; he “is clearly rehabilitated,” the judge said, and his family “relies on him and would suffer hardship” if he were deported.

At every juncture, Sotomayor emphasizes the real-world implications of what the conservatives presented as a rather dry question of statutory interpretation: By the time immigration authorities put Andre Barton in removal proceedings, every member of his immediate family was living in America. Deporting him deprives his family of its primary provider, and sends him off to a country he hasn’t seen in decades.

Not until the very end of Kavanaugh’s opinion does he begin to grapple with the stakes of the case before him. “Removal of a lawful permanent resident … is a wrenching process, especially in light of the consequences for family members,” he wrote. “Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States.”

Just as quickly as he began to acknowledge Barton’s humanity, though, Kavanaugh returned to emphasizing the length of Barton’s rap sheet and the gravity of his transgressions. Congress chose to provide for the deportation of immigrants who commit “serious crimes,” he reasons, and to cut off those with “substantial criminal records” from the possibility of relief; the law, he writes, does not extend leniency to someone who “has amassed a criminal record of this kind.” Put differently, the Court’s conservatives are not responsible for what happened to Andre Barton; Barton, in their telling, did this to himself.

The exact words the justices use while resolving arcane questions about obscure immigration statutes may not seem significant. But when the choice the Court ultimately makes is so callously indifferent to the plight of vulnerable people, framing becomes a critical tool for defending their deliberative process. The decision in Barton v. Barr enables an unapologetically anti-immigrant president to deport longtime legal residents over events that took place years ago, breaking up families and depriving children of their parents and parents of their children. Kavanaugh knows this perfectly well; he acknowledges as much in his opinion. By sketching a two-dimensional portrait of Andre Barton as a dangerous ex-con and ignoring decades of growth and development since, Kavanaugh and the conservatives quietly absolve themselves of any moral obligation to think about it.

Jay Willis is a senior contributor at The Appeal.

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Read Jay’s complete article at the link.

Yup. No surprise to readers of Courtside.

While, as usual, I was willing to give J.R. and his merry band the “benefit of the doubt,” presuming at least some modicum of intellectual honesty and human decency regardless of philosophical disposition, I’ve been “onto” the judicial, intellectual, and moral fraud going on at our highest Court for some time now.

Yeah, on a few occasions (see, e.g., Pereira, Guerrero-Lasprilla) some members of “The Five” have had no choice but to recognize that there was no possible way to justify some aspects of the Administration’s vendetta against immigrants and asylum seekers. But, on the big questions, from the bogus “Travel Ban,” to the cruel, inhuman, and clearly illegal and unconstitutional “Let ’Em Die in Mexico” Program, to the illegal White Nationalist scheme to misapply “public charge” grounds to attack the health and welfare of ethnic communities, “The Five” have been out front on the White Nationalist movement to “Dred Scottify” and dehumanize “the other.”

To be fair, the BIA decision here Matter of Jurado-Delgado, 24 I&N Dec. 24 I&N Dec. 29 (BIA 2006), originated years ago, in the “Post-Ashcroft-Purge-Era” of the BIA, during the Bush II Administration. But, all that shows is that the BIA’s drift away from the most fair and humane interpretations of the immigration laws and toward “enforcement friendly jurisprudence,” has been going on for the last two decades, across three different Administrations. However, under Trump, Sessions, Whitaker, & now Barr that “drift” has now become a “mad dash to the bottom.”

Thanks to folks like Jay Willis, Professor Nancy Morawetz, and other lawyers, commentators, and journalists, history will not let the “J.R. Five” escape unscathed for their corrupt backing of “The New Jim Crow.”

Due Process Forever! Jim Crow & Complicit Supremes, Never!

PWS

04-30-20

SUPREME WIN FOR THE REGIME: “J.R. Five” Interprets Statute Broadly To Narrow Eligibility For Deportation Waiver — Justice Sotomayor + 3 Dissent — Barton v. Barr (5-4)

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/supreme-court-on-cancellation-barton-v-barr-5-4

Dan Kowalski reports from LexisNexis Immigration Community:

Supreme Court on Cancellation: Barton v. Barr (5-4)

Barton v. BarrMr.

[Maj. Op.] “Barton argues that the BIA and the Eleventh Circuit misinterpreted the statute. He contends that the §1182(a)(2) offense that precludes cancellation of removal must be one of the offenses of removal. We disagree with Barton, and we affirm the judgment of the U. S. Court of Appeals for the Eleventh Circuit.”

[Dissent] “At bottom, the Court’s interpretation is at odds with the express words of the statute, with the statute’s overall structure, and with pertinent canons of statutory construction. It is also at odds with common sense. With virtually every other provision of the INA, Congress granted preferential treatment to lawfully admitted noncitizens—and most of all to LPRs like Barton. But because of the Court’s opinion today, noncitizens who were already admitted to the country are treated, for the purposes of the stop-time rule, identically to those who were not—despite Congress’ express references to inadmissibility and deportability. The result is that, under the Court’s interpretation, an immigration judge may not even consider whether Barton is entitled to cancellation of removal—because of an offense that Congress deemed too trivial to allow for Barton’s removal in the first instance. Because the Court’s opinion does no justice to the INA, let alone to longtime LPRs like Barton, I respectfully dissent.”

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Thanks Dan.

Justice Kavanaugh wrote the majority opinion.

As a frequent critic of the “J.R. Five” and their general predisposition to stretch to reward the regime over individuals seeking Due Process and fundamental fairness, I wasn’t surprised by this result.

As compared with trashing the legal rights of asylum seekers and those seeking legal status as “The Five” have done in other cases, this decision on waivers has a much more limited impact. Nevertheless, it does unnecessarily “screw” long-time members of our society with potential equities to offset their misconduct.

The vote should have been 9-0 in favor of Mr. Barton. The “GOP majority,” supposedly made up of “strict constructionists,” “torqued” the actual language of the statute to reach their preferred result — “stiffing” Mr. Barton who has resided in the U.S. since age 10.

By contrast, reading the statutory language at its face value, Justice Sotomayor and her dissenting colleagues also reached a practical, common sense result that would have allowed Immigration Judges to “weigh the equities” in deciding whether to grant the waiver to long-time green card holders. It by no means guarantees them a “win.” It just allows them and their families to to “make their case” on the merits.

Perhaps, effectively denying individuals a meaningful “day in court” on relief from deportation speeds up the “deportation railroad” a bit. But, at what cost?

Read the full decision at the above link.

PWS

04-23-20

COMPLICITY WATCH: Justice Sonia Sotomayor Calls Out “Men In Black” For Perverting Rules To Advance Trump/Miller White Nationalist Nativist Immigration Agenda!

Mark Joseph Stern
Reporter, Slate

https://slate.com/news-and-politics/2020/02/sotomayor-trump-wealth-test-bias-dissent.html

Mark Joseph Stern reports for Slate:

. . . .

Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.

Read the full article at the above link.

Here’s a link to Justice Sotomayor’s full dissent in Wolf v. Cook County:

SotomayorPublicChargeDissetn19a905_7m48

Justice Sonia Sotomayor

Here’s a “key quote” from Justice Sotomayor’s dissent:

These facts—all of which undermine the Government’s assertion of irreparable harm—show two things, one about the Government’s conduct and one about this Court’s own. First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.” Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 5). Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming lim- ited Court resources in each. And with each successive ap- plication, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge

6 WOLF v. COOK COUNTY SOTOMAYOR, J., dissenting

rule in particular shows how much its own definition of ir- reparable harm has shifted. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one State.

Second, this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.

Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timeta- bles and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the govern- ment.” Application 3.) They demand extensive time and resources when the Court’s intervention may well be unnec- essary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of ir- reparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Mur- phy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from grant of stay) (slip op., at 6) (“When courts do not have ad- equate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decision making process that this Court must strive to protect.

I respectfully dissent.

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

Of course, the regime’s use of manufactured and clearly bogus “national emergencies” or fake appeals to “national security” is a perversion of both fact and law, as well as a mocking of Constitutional separation of powers. This obscenely transparent legal ruse essentially was invited by the Roberts and his GOP brethren. Roberts somewhat disingenuously claims to be a “student of history.” But, whether he takes responsibility for it or not, he has basically invited Trump & Miller to start a new “Reichstag Fire” almost every week with migrants, asylum seekers, Latinos, and the less affluent as the “designated usual suspects.”

Powerful as her dissent is, Justice Sotomayor actually understates the case against her GOP colleagues. Every racist, White Nationalist, nativist, and/or authoritarian movement in American history has been enabled, advanced, and protected by morally corrupt and intellectually dishonest jurists who have intentionally provided “legal cover” for those official misdeeds. How about “states rights,” “separate but equal,” “plenary power,” and a host of other now discredited legal doctrines used to justify everything from slavery to denying voting, and other Constitutional rights including life itself to African Americans? They were all used to “cover” for actions that might more properly have been considered “crimes against humanity.”

Who knows what legal blather Roberts and his four fellow rightist toadies will come up with to further promote the destruction of humanity and the disintegration of American democracy at the hands of Trump, Miller, Barr, Putin, and the rest of the gang?

But, courageous “outings” like those by Justice Sotomayor will help insure that history will be able to trace the bloody path of needless deaths, ruined lives, wasted human potential, official hate mongering, and unspeakable human misery they are unleashing directly to their doors and hold them accountable in a way that our current system has disgracefully failed to do.

Trump was right about at least one thing: There are indeed “GOP Justices” on the Supremes wholly owned by him and his party. They consistently put GOP rightist ideology and and authoritarianism above the Constitution, human rights, the rule of law, intellectual honesty, and simple human decency. Other than that, they’re a “great bunch of guys!”

Due Process Forever; Complicit Courts Never!

PWS

02-22-20

GO FIGURE: BKavs Stands Up For Rights Of African-Americans, While Clarence Thomas Presents Incoherent & Disingenuous Defense Of Jim Crow!

https://slate.com/news-and-politics/2019/06/brett-kavanaugh-clarence-thomas-racist-juries-mississippi.html

Mark Joseph Stern reports for Slate:

Much of the Supreme Court’s 7–2 decision in Flowers v. Mississippi on Friday reads like a nightmare. The facts are straight out of the Jim Crow South: A white Mississippi prosecutor, Doug Evans, prosecuted a black man, Curtis Flowers, for the exact same crime six times in search of a capital conviction that might stick. In the process, Evans struck 41 of 42 black prospective jurors, an obvious attempt to secure an all-white jury. Several convictions were overturned due to flagrant prosecutorial misconduct. At Flowers’ sixth trial, however, Evans finally got a death sentence upheld by the Mississippi Supreme Court. Can that punishment possibly comport with the Constitution’s command of equal protection?

In a decision written by Justice Brett Kavanaugh, the U.S. Supreme Court said no, reversing Flowers’ conviction in light of obvious racial bias. To Kavanaugh’s credit, his opinion confronts Evans’ racism head-on and bolsters constitutional safeguards against prosecutorial attempts to purge minorities from juries. Meanwhile, Justice Clarence Thomas penned a scorching dissent, joined in part by Justice Neil Gorsuch, savaging the majority for trying to “boost its self-esteem” while “needlessly prolong[ing] the suffering of four victims’ families.” Thomas, in fact, is eager to overturn decades of precedent limiting prosecutors’ ability to exclude minority jurors on the basis of their race.

The facts of Flowers are simply appalling. In 1996, someone murdered four people at Tardy Furniture in Winona, Mississippi; Evans, the district attorney, decided Flowers was the killer. The evidence against Flowers was astonishingly meager: It rested largely on eyewitness testimonies, provided weeks and months after the crime, that often provided conflicting details. No eyewitnesses came forward until the state offered a $30,000 reward, and several later reported being coerced by prosecutors into implicating Flowers. Investigators never found DNA evidence or fingerprints tying Flowers to the murder. Instead, they identified a single particle of gunshot residue on Flowers’ hand—which, they acknowledged, could have come from the police car that took him to the station, or from the fireworks he set off the day before.

Throughout the six trials, three “jailhouse snitches” testified that Flowers confessed to them; each later recanted, admitting that they had lied. One conceded that he fabricated the confession to receive a sentence reduction. The victims were executed with chilling efficiency, several execution-style, yet Flowers had no criminal history; he did not even own a gun. His cousin, Doyle Simpson, owned the gun allegedly used in the killings. Multiple eyewitnesses saw a man who looked like Simpson outside Tardy Furniture on the morning of the crime. Their evidence was not contradictory or coerced.

Nonetheless, Evans relentlessly targeted Flowers, engaging in a quest to remove black Mississippians from the jury each time. He did so using peremptory strikes, which allow trial attorneys to strike prospective jurors without providing a reason. In 1986’s Batson v. Kentucky, the Supreme Court attempted to come up with a tool to combat racist peremptory strikes: If a defendant challenged a strike on racial grounds, prosecutors had to provide a “neutral explanation” for their decision. The court explained that the Constitution “forbids the States to strike black [jurors] on the assumption that they will be biased in a particular case simply because the defendant is black.” Otherwise, the “core guarantee of equal protection … would be meaningless.”

Nonetheless, at Flowers’ first trial, Evans used peremptory strikes to remove every potential black juror, obtaining an all-white jury that sentenced Flowers to death. The Mississippi Supreme Court reversed because the prosecution acted “in bad faith” by baselessly disputing the credibility of a defense witness and mentioning facts not in evidence. Next time around, Evans once again used his peremptory strikes to remove all black jurors, but this time the trial judge objected and seated one black juror. The jury convicted Flowers, but its verdict was reversed again for essentially the same reasons.

Third time up: Prosecutors used all their peremptory strikes to remove black prospective jurors. Only one black juror was seated. The jury sentenced Flowers to death, but the Mississippi Supreme Court reversed, finding a Batson violation. At the fourth and fifth trials, prosecutors ran out of peremptory challenges and had to settle for juries with multiple blacks. Both times, the jury failed to reach a verdict, resulting in mistrials. Finally, at Flowers’ sixth trial, prosecutors used five out of six peremptory strikes on black potential jurors. A jury of 11 whites and one black sentenced Flowers to death. He argued another Batson violation, but the Mississippi Supreme Court upheld his sentence, so he appealed to SCOTUS.

Technically, only the peremptory strikes at Flowers’ sixth trial are at issue in this case. But Kavanaugh recounted the history of Evans’ racist machinations and clarified that this “historical evidence” matters. Across Flowers’ many trials, he wrote:

[T]he State employed its peremptory strikes to remove as many black prospective jurors as possible. The State appeared to proceed as if Batson had never been decided. The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.

“We cannot ignore that history,” the justice concluded, when assessing Evans’ removal of blacks from the jury at Flowers’ most recent trial. “We cannot take that history out of the case.”

Kavanaugh also pointed to “dramatically disparate questioning of black and white prospective jurors in the jury selection process for Flowers’ sixth trial.” Prosecutors “asked the five black prospective jurors who were struck a total of 145 questions.” Yet they asked “the 11 seated white jurors a total of 12 questions.” Put differently, each prospective black juror was grilled with an average of 29 questions; each seated white juror was asked an average of one.

Why? By “asking a lot of questions of the black prospective jurors,” Kavanaugh wrote, “a prosecutor can try to find some pretextual reason—any reason—that the prosecutor can later articulate to justify what is in reality a racially motivated strike.” But a court “confronting that kind of pattern cannot ignore it.” This “lopsidedness” can demonstrate that the prosecutor was attempting to “disguise a discriminatory intent.”

Assessing all this damning evidence, Kavanaugh found that prosecutors struck at least one potential black juror from Flowers’ sixth trial on the basis of race. He tossed out the death sentence and sent the case back down to Mississippi for a new trial. Evans still serves as district attorney and could handle Flowers’ seventh trial—even though SCOTUS has now made clear that his conduct in this case has been permanently tainted by racism.

In dissent, Thomas accused the majority of taking Flowers’ case because it wanted to “scorn” Mississippi state courts, or perhaps “because the case has received a fair amount of media attention.” (The media, he warned, often prefers “to titillate rather than to educate and inform.”) Thomas dismissed Kavanaugh’s opinion as “manifestly incorrect,” insisting that Evans had perfectly good reasons to strike five black prospective jurors from the sixth trial. And he wrote that the majority “builds its decision around the narrative that this case has a long history of race discrimination. This narrative might make for an entertaining melodrama, but it has no basis in the record.” (It does; Thomas just rewrites the record to excuse every single instance of Evans’ egregious racial bias.)

Gorsuch joined those portions of the dissent, but declined to sign onto its most radical assertion: that Batson itself should be overruled. Black defendants tried by all-white jurors created by racist prosecutors, Thomas wrote, suffer “no legally cognizable injury.” The accused suffer no equal protection violation when they are tried by a jury selected on the basis of race. Moreover, prosecutors should be permitted to make “generalizations” about black jurors, because “race matters in the courtroom.” Thomas ended his screed by berating the court for “needlessly prolong[ing] the suffering of four victims’ families” in an effort to “boost its self-esteem,” and declared: “If the Court’s opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again.”

It’s an encouraging sign that Kavanaugh just ignored Thomas’ dissent, as it is really too wacky, too hostile, and aggrieved to merit a response. Rather, with a majority of the court behind him, Kavanaugh made the case that courts can identify discriminatory intent without a smoking gun of overt racism. Evans never used racial epithets in the courtroom or stated his desire for a white jury; his actions alone told the court everything it needed to know about his motivations. This Supreme Court may not always confront unconstitutional prejudice with such clear-eyed pragmatism, but it’s worth celebrating a decision that enforces constitutional limits on racist prosecutions.

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

I admit to not being a big BKavs fan. But, I appreciate his strong and courageous leadership on this case.

PWS

06-23-19

JUSTICE GORSUCH EXPRESSES SOME SKEPTICISM ABOUT GOV’S UNLIMITED POWER IN IMMIGRATION DETENTION CASE!

6https://www.buzzfeednews.com/article/chrisgeidner/supreme-court-dhs-immigrant-detention

Chris Geidner reports for BuzzFeed News:

In a case that the ACLU says could affect thousands of immigrants, the Supreme Court on Wednesday considered when the government has the right to detain a class of immigrants without a bail hearing.

Under a 1996 law, the federal government is allowed to detain immigrants whose criminal conviction or involvement in terrorism-related activities would make them inadmissible or deportable. The law says the government “shall” take any of those immigrants into custody “when the alien is released” from criminal custody. The question before the justices is: What happens if the Department of Homeland Security doesn’t do so immediately?

The arguments on Wednesday focused on the technicalities of the 1996 law, rules of grammar, and timelines — not the sort of fiery rhetoric usually favored by President Donald Trump or Attorney General Jeff Sessions when talking about immigrants.

And while the case was granted to resolve the question of whether the statute still applied if DHS does not act immediately — whether there is any time restriction — the arguments shifted to a question of what limitation would be reasonable.

After a back-and-forth with Justice Sonia Sotomayor and a question from Justice Ruth Bader Ginsburg, Justice Neil Gorsuch spoke up early in the Wednesday arguments, asking, “[D]oes the government have any view about if ever the obligation [to take an immigrant into custody] lapses? Could it be 30 years? … Thirty years, and the government was aware of him the entire time and chose not to act. … Is there any limit on the government’s power?”

The government lawyer, Zachary Tripp from the Solicitor General’s Office, said the law created “a continuing obligation” that “does not lapse.”

Later, when Justice Stephen Breyer raised a similar question and Tripp began answering about when certain underlying crimes would be covered under the detention provision, Gorsuch interjected, said that back-and-forth was “quibbling,” and redirected Tripp to the larger question: “Justice Breyer’s question is my question, and I really wish you’d answer it.”

Breyer then stated his question more directly: “Is the government’s position that this paragraph, which says shall be arrested upon release, applies to a person who has been released 50 years before?”

Tripp, not giving in at all, said the government’s position is “absolutely that this applies regardless of the time” that’s passed.

. . . .

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

Read the complete article at the link.

I had predicted the possibility that Justice Gorsuch’s past jurisprudence questioning the extent of and deference to Executive Power could make him an “honest broker” in some immigration cases.

I’d like to believe Justice Kavanaugh’s testimony that he will approach cases in a fair and impartial manner. But, neither his partisan outburst during his conformation nor his fawning performance during the unnecessary “formal swearing in” that became a Trump campaign rally were very encouraging from a fairness and impartiality standpoint.

Both his reputation and the country would be better served if he filled the “open minded conservative” role played by his predecessor and mentor Justice Kennedy rather than the “bought and paid for partisan vote” that all the Senators and Trump expect him to be.

Indeed, the one unifying theme of the Senate confirmation process was that all believed that he would perform as a totally predictable right-wing partisan vote. If he doesn’t live up to this expectation, the Dems will be (pleasantly) shocked and the GOP outraged at his “betrayal.” That’s why he would do well to at least occasionally listen carefully to the analysis of some of his more “liberal leaning” colleagues.

Here’s the full transcript of the oral argument courtesy of Dan Kowalski over at LexisNexis Immigration Community: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/16-1363_h315.pdf

PWS

10-11-18

JRUBE @ WASHPOST: Misogynists Rule, Propped Up By Their Women!

https://www.washingtonpost.com/news/opinions/wp/2018/10/07/they-left-no-doubt-what-they-think-of-women/

Jennifer Rubin writes in the WashPost:

Sen. Orrin Hatch (R-Utah) barked at female sex-crime victims, “Grow up!” He called Christine Blasey Ford a “pleasing” witness. He shooed women away with a flick of his wrist. Hatch also posted “an uncorroborated account from a Utah man questioning the legitimacy and sexual preferences” of Julie Swetnick, one of Brett M. Kavanaugh’s accusers. The Salt Lake Tribune editorial board raked him over the coals:

The despicable attack launched by Sen. Orrin Hatch and the Senate Judiciary Committee — more precisely, the Republicans on that committee — on one of the women who has accused Supreme Court nominee Brett Kavanaugh of sexual assault is a textbook example of why more victims do not come forward.

Worse, it betrays a positively medieval attitude toward all women as sex objects who cannot be believed or taken seriously.

Not a single Republican spoke up to criticize him. One would think someone would point out that he brought dishonor on himself, his party and the Senate. But clearly Republicans take no umbrage at such conduct.

Senate Judiciary Committee Chairman Charles E. Grassley(R-Iowa) attempted to excuse the lack of a single Republican woman — ever — on the Judiciary Committee. “It’s a lot of work — maybe they don’t want to do it.”Kavanaugh snapped and sneered at female senators on the Judiciary Committee. Republicans didn’t bat an eye or hold it against him. He was just mad, you see.

President Trump repeated the calumny that if the attack was “as bad” as Ford said she’d have gone to the police. He declared it was a “scary time” for young men. He openly mocked Ford at a rally to gin up his base’s anger. Republican apologists said he was just explaining the facts. He actually misrepresented her testimony, falsely claiming she couldn’t recall many facts — the neighborhood of the house where she was attacked. William Saletan called out Trump and his defenders: “It’s true that Ford can’t recall important details about place and time. It’s true that she can’t recall how she got to the house or how she left. It’s true that every accused person is entitled to a presumption of innocence. But Trump’s portrayal of Ford’s testimony wasn’t true. It was a pack of lies. And people who defend it, like Lindsey Graham, are liars too.”

Trump and other Republicans accused sex-crime victims protesting Kavanaugh as protesters paid by George Soros (a Jewish left-wing billionaire whose name is routinely invoked in anti-Semitic attacks). The GOP Senate whip, Sen. John Cornyn (R-Tex.), called the victims a “mob” and echoed the bogus claim that they were paid protesters. They deny victims’ very existence; they are non-persons — props sent by opponents to ruin a man’s life.

Graham snorted that he’d hear what “the lady has to say” and then vote Kavanaugh in. Senate Majority Leader Mitch McConnell (R-Ky.) said he’d “plow right through” (more like plow over) Ford’s testimony and confirm Kavanaugh. Republicans’ defense of Kavanaugh — that Ford and others were props of a left-wing plot and therefore lacked agency of their own — evidences the party’s attitude toward women.

You cannot say a party that embraces a deeply misogynistic president who bragged about sexually assaulting women and mocked and taunted a sex-crime victim; accepted a blatantly insufficient investigation of credible sex crimes against women in lieu of a serious one that the White House counsel knew would be disastrous; repeatedly insulted and dismissed sex-crime victims exercising their constitutional rights; has never put a single woman on the Judiciary Committee (and then blames its own female members for being too lazy); and whips up male resentment of female accusers is a party that respects women. Its members resent women. They scorn women. They exclude women. They use women to maintain their grip on power. But they do not respect them.

What’s worse is that Republicans who would never engage in this cruel and demeaning behavior themselves don’t bat an eye when their party’s leaders do so. Acceptance of Trump’s misogyny — like their rationalization of the president’s overt racism — becomes a necessity for loyal Republicans. If it bothers a Republican, he or she dare not say so. One either agrees or ignores or rationalizes such conduct, or one decide it’s a small price to pay (“it” being the humiliation of women) for tax cuts and judges. It’s just words, you know.

The Republican Party no longer bothers to conceal its loathing of immigrants, its contempt for a free press, its disdain for the rule of law or its views on women. Indeed, these things now define a party that survives by inflaming white male resentment. Without women to kick around, how would they get their judge on the court or their guys to the polls?

Women with this ordeal seared into the hippocampus of their brains will vote in November. Women are expected to forget or move on? I don’t think so.

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

Yup! Need to vote!

The “Club” is in power because too many non-members failed to vote. And, those young men who DON’T aspire to grow up to be Trump, Sessions, Hatch, Kavanaugh, Graham, Grassley, Steve King, Kobach, or Stephen Miller had better unite with their “non-Club sisters” to vote the Good Old Boys (and their women supporters and enablers) out of office.

If nothing else, last week shows the futility of demonstrating, public opinion polls, writing op-Ed’s, running commercials, and protesting when you don’t have the votes. Put the energy into winning elections! That’s what the Club does. And, it might be the only thing they are right about.

PWS

10-08-19

ADAM SERWER IN THE ATLANTIC: The Trump/Sessions/Miller White Nationalist Policies: It’s All About Cruelty & Hate!

https://www.theatlantic.com/ideas/archive/2018/10/the-cruelty-is-the-point/572104/

Adam Serwer writes in The Atlantic:

The Museum of African-American History and Culture is in part a catalog of cruelty. Amid all the stories of perseverance, tragedy, and unlikely triumph are the artifacts of inhumanity and barbarism: the child-size slave shackles, the bright red robes of the wizards of the Ku Klux Klan, the recordings of civil-rights protesters being brutalized by police.

Make your conversation more interesting

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The artifacts that persist in my memory, the way a bright flash does when you close your eyes, are the photographs of lynchings. But it’s not the burned, mutilated bodies that stick with me. It’s the faces of the white men in the crowd. There’s the photo of the lynching of Thomas Shipp and Abram Smith in Indiana in 1930, in which a white man can be seen grinning at the camera as he tenderly holds the hand of his wife or girlfriend. There’s the undated photo from Duluth, Minnesota, in which grinning white men stand next to the mutilated, half-naked bodies of two men lashed to a post in the street—one of the white men is straining to get into the picture, his smile cutting from ear to ear. There’s the photo of a crowd of white men huddled behind the smoldering corpse of a man burned to death; one of them is wearing a smart suit, a fedora hat, and a bright smile.

Their names have mostly been lost to time. But these grinning men were someone’s brother, son, husband, father. They were human beings, people who took immense pleasure in the utter cruelty of torturing others to death—and were so proud of doing so that they posed for photographs with their handiwork, jostling to ensure they caught the eye of the lens, so that the world would know they’d been there. Their cruelty made them feel good, it made them feel proud, it made them feel happy. And it made them feel closer to one another.

The Trump era is such a whirlwind of cruelty that it can be hard to keep track. This week alone, the news broke that the Trump administration was seeking to ethnically cleanse more than 193,000 American children of immigrants whose temporary protected status had been revoked by the administration, that the Department of Homeland Security had lied about creating a database of children that would make it possible to unite them with the families the Trump administration had arbitrarily destroyed, that the White House was considering a blanket ban on visas for Chinese students, and that it would deny visas to the same-sex partners of foreign officials. At a rally in Mississippi, a crowd of Trump supporters cheered as the president mocked Christine Blasey Ford, the psychology professor who has said that Brett Kavanaugh, whom Trump has nominated to a lifetime appointment on the Supreme Court, attempted to rape her when she was a teenager. “Lock her up!” they shouted.Ford testified to the Senate, utilizing her professional expertise to describe the encounter, that one of the parts of the incident she remembered most was Kavanaugh and his friend Mark Judge laughing at her as Kavanaugh fumbled at her clothing. “Indelible in the hippocampus is the laughter,” Ford said, referring to the part of the brain that processes emotion and memory, “the uproarious laughter between the two, and their having fun at my expense.” And then at Tuesday’s rally, the president made his supporters laugh at her.

Further reading: The most striking thing about Trump’s mockery of Christine Blasey Ford

Even those who believe that Ford fabricated her account, or was mistaken in its details, can see that the president’s mocking of her testimony renders all sexual-assault survivors collateral damage. Anyone afraid of coming forward, afraid that she would not be believed, can now look to the president to see her fears realized. Once malice is embraced as a virtue, it is impossible to contain.

The cruelty of the Trump administration’s policies, and the ritual rhetorical flaying of his targets before his supporters, are intimately connected. As Lili Loofbourow wrote of the Kavanaugh incident in Slate, adolescent male cruelty toward women is a bonding mechanism, a vehicle for intimacy through contempt. The white men in the lynching photos are smiling not merely because of what they have done, but because they have done it together.

We can hear the spectacle of cruel laughter throughout the Trump era. There were the border-patrol agents cracking up at the crying immigrant childrenseparated from their families, and the Trump adviser who delighted white supremacists when he mocked a child with Down syndrome who was separated from her mother. There were the police who laughed uproariously when the president encouraged them to abuse suspects, and the Fox News hosts mocking a survivor of the Pulse Nightclub massacre (and in the process inundating him with threats), the survivors of sexual assault protesting to Senator Jeff Flake, the women who said the president had sexually assaulted them, and the teen survivors of the Parkland school shooting. There was the president mocking Puerto Rican accents shortly after thousands were killed and tens of thousands displaced by Hurricane Maria, the black athletes protesting unjustified killings by the police, the women of the #MeToomovement who have come forward with stories of sexual abuse, and the disabled reporter whose crime was reporting on Trump truthfully. It is not just that the perpetrators of this cruelty enjoy it; it is that they enjoy it with one another. Their shared laughter at the suffering of others is an adhesive that binds them to one another, and to Trump.

Read Adam Serwer on why the white nationalists are winning

Taking joy in that suffering is more human than most would like to admit. Somewhere on the wide spectrum between adolescent teasing and the smiling white men in the lynching photographs are the Trump supporters whose community is built by rejoicing in the anguish of those they see as unlike them, who have found in their shared cruelty an answer to the loneliness and atomization of modern life.

The laughter undergirds the daily spectacle of insincerity, as the president and his aides pledge fealty to bedrock democratic principles they have no intention of respecting. The president who demanded the execution of five black and Latino teenagers for a crime they didn’t commit decrying “false accusations,” when his Supreme Court nominee stands accused; his supporters who fancy themselves champions of free speech meet references to Hillary Clinton or a woman whose only crime was coming forward to offer her own story of abuse with screams of “Lock her up!” The political movement that elected a president who wanted to ban immigration by adherents of an entire religion, who encourages police to brutalize suspects, and who has destroyed thousands of immigrant families for violations of the law less serious than those of which he and his coterie stand accused, now laments the state of due process.

This isn’t incoherent. It reflects a clear principle: Only the president and his allies, his supporters, and their anointed are entitled to the rights and protections of the law, and if necessary, immunity from it. The rest of us are entitled only to cruelty, by their whim. This is how the powerful have ever kept the powerless divided and in their place, and enriched themselves in the process.

Further reading: I know Brett Kavanaugh, but I wouldn’t confirm him

A blockbuster New York Times investigation on Tuesday reported that President Trump’s wealth was largely inherited through fraudulent schemes, that he became a millionaire while still a child, and that his fortune persists in spite of his fumbling entrepreneurship, not because of it. The stories are not unconnected. The president and his advisers have sought to enrich themselves at taxpayer expense; they have attempted to corrupt federal law-enforcement agencies to protect themselves and their cohorts, and they have exploited the nation’s darkest impulses in the pursuit of profit. But their ability to get away with this fraud is tied to cruelty.

Trump’s only true skill is the con; his only fundamental belief is that the United States is the birthright of straight, white, Christian men, and his only real, authentic pleasure is in cruelty. It is that cruelty, and the delight it brings them, that binds his most ardent supporters to him, in shared scorn for those they hate and fear: immigrants, black voters, feminists, and treasonous white men who empathize with any of those who would steal their birthright. The president’s ability to execute that cruelty through word and deed makes them euphoric. It makes them feel good, it makes them feel proud, it makes them feel happy, it makes them feel united. And as long as he makes them feel that way, they will let him get away with anything, no matter what it costs them.

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I could see it in the mindless clapping, revolting laughter, and sickening glee in the eyes of the ugly, overwhelmingly White crowd (many of them women, although a few of the women didn’t seem amused) behind Trump as he denigrated and mocked Christine Blasey Ford this week.

Also in the angry, distorted snarl of Sen. Lindsey Graham as he absurdly called the Kavanaugh hearings “the most unethical” performance (LG, my man, where were you when Mitch, you, and your colleagues totally stiffed a much better qualified Obama appointment, , without even giving him the courtesy of a hearing?).

Also in the incredibly arrogant, partisan, rude, condescending, and openly misogynistic way that Kavanaugh treated Senator Amy Klobuchar’s totally reasonable inquiry. Would Senator Susan Collins still have voted for “BKavs” if he had treated her that way? I doubt it! But, I guess her women colleagues don’t matter. And, it appears that “Chairman Chuckie” Grassley doesn’t really need or want any GOP women on his “Old Boys Club” (a/k/a Senate Judiciary Committee.) Only Democrat women can hack the stress and workload of serving on a daily basis with the GOP misogynists.

What do you call a party whose “base” glories in the pain and suffering of others? The 21st Century GOP!

It’s an existential threat to the future of our country! If decent folks don’t start using the ballot box to remove the GOP from power at every level, it might be too late for the majority of us to take our country back from the misguided minority who have taken power! Get out the vote in November!

PWS

10-07-18

Ian Millhiser reports for Vox:

🇺🇸 Due Process Forever!

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Here’s a link to the decision:

Here’s the Syllabus by Court staff:

🇺🇸Due Process Forever!

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