“Don’t know much about history, Don’t know much biology, Don’t know much about science book, Don’t know much about the French I took . . . .” — Decades Of Anti-Science, Education Bashing, Dissing The Arts, And Anti-Intellectualism By The GOP Have Left Us With The Wasteland Of Donald Trump!

Quote from “Don’t Know Much About History,” Music & Lyrics By Sam Cooke http://www.songlyrics.com/sam-cooke/don-t-know-much-about-history-lyrics/

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https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2017/04/14/daily-202-trump-doesn-t-know-much-about-history-it-s-making-his-on-the-job-training-harder/58f06ba2e9b69b3a72331e84/?utm_term=.19018fb0f4f4

James Hohmann writes in the Washington Post:

“THE BIG IDEA: Donald Trump believed he could convince China to pressure North Korea to stop its nuclear activities. Then President Xi Jinping tutored him on the history of the region.

“After listening for 10 minutes, I realized that it’s not so easy,” Trump told the Wall Street Journal on Wednesday, recounting the session at Mar-a-Lago. “You know, I felt pretty strongly that they had a tremendous power over North Korea. But it’s not what you would think.”

This comment is funny because, in 2011, Trump claimed that he has read “hundreds of books about China over the decades,” including works by Henry Kissinger, American journalists and Chinese novelists. Looking to do more business with Beijing, he provided a list of 20 books about China to Xinhua, the official Chinese news agency, that he said had helped him understand the country, its politics and its people. “I know the Chinese. I’ve made a lot of money with the Chinese. I understand the Chinese mind,” Trump said six years ago. His list had some surprising titles on it, including “Battle Hymn of the Tiger Mother.”

Color me skeptical that Trump has read anything by Amy Chua.

— Even if he has, the fact our president needed an introductory tutorial on Sino-Korean relations to understand how hard it is to contain Pyongyang is just the latest illustration of one of his blind spots: He and his inner-circle have very little sense of history.

— It is a cliché, but there is truth to it: Those who cannot remember the past are condemned to repeat it.

— Trump has committed several small but memorable faux pas since the inauguration:

He mentioned Abraham Lincoln during a fundraising dinner for the National Republican Congressional Committee last month. “Most people don’t even know he was a Republican,” Trump said. “Does anyone know? Lot of people don’t know that!” (Most likely, every person in the ballroom knew and has attended at least one Lincoln Day dinner.)

On Lincoln’s birthday in February, Trump tweeted out an obviously fake quote from the 16th president: “In the end, it’s not the years in your life that count, it’s the life in your years.” He later deleted it.

Frederick Douglass is an example of somebody who’s done an amazing job and is getting recognized more and more, I notice,” he said at a Black History Month event. (Douglass died in 1895.)

“Have you heard of Susan B. Anthony?” he asked at a Women’s History Month reception in March.

In January, Trump said Rep. John Lewis (D-Ga.) – who is best known for almost getting beaten to death as he marched on Bloody Sunday in Selma – is “all talk, talk, talk – no action or results.” There are things Lewis could be fairly criticized for, but no one who knows anything about the civil rights movement would agree that being “all talk” is one of them.

— Those four gaffes were tailormade to go viral on social media, but the president has made other comments that perhaps better underscore his lack of depth on U.S. history. Only someone who doesn’t understand the ugly history of the 1930s, for example, could have so wholeheartedly embraced “America First” as a mantra, let alone made it a rallying cry in his inaugural address. The slogan was first popularized by Nazi sympathizers.

— Trump has embraced Andrew Jackson as his political idol, hanging his portrait in the Oval Office and even flying to Nashville on his 250th birthday to lay a wreath on his tomb. In a speech there, he identified with the seventh president because he took on the “arrogant elite.” “Does that sound familiar?” Trump said with a sly smile.

Yet the very next week, in Louisville, the president claimed the mantle of Henry Clay. “Henry Clay believed in what he called the ‘American system,’ and proposed tariffs to protect American industry and finance American infrastructure,” the president said in a long riff. “Like Henry Clay, we want to put our own people to work. … Clay was a fierce advocate for American manufacturing. … He knew all the way back, (in the) early 1800s, Clay said that trade must be fair, equal, and reciprocal. Boom!”

Anyone who has a passing familiarity with 19th century history knows how goofy it is to embrace both Jackson and Clay. “They were absolutely feral enemies,” Fergus Bordewich, a Clay biographer, told Time after Trump’s speech. “They absolutely hated each other. They shared almost no views in common.”

— Sean Spicer’s cringe-worthy comments this week that Syrian President Bashar al-Assad’s actions were worse than Adolf Hitler’s suggested a more endemic problem of historical illiteracy in the White House. The press secretary has since apologized for saying that Hitler “was not using the gas on his own people in the same way that Assad is doing.” He also referred to concentration camps as “the Holocaust centers.”

Because Spicer made his comment on the first day of Passover, the observant staff members at the Anti-Defamation League had their phones and televisions off. So they didn’t find out until Wednesday night what had happened. Leaders of the group reached out to the White House yesterday to offer a training session on the Holocaust. “The organization has taught classes on Hitler’s murderous campaign — which exterminated 6 million Jews and millions more LGBT people, Poles, socialists and others — to more than 130,000 law enforcement professionals and 35,000 teachers,” Julie Zauzmer reports. ADL is willing to offer a free session to Spicer or “anyone at the White House who may need to learn more about the Holocaust.” Spicer didn’t respond to an email about whether he’d do it.

— Trump has admitted that he is not intellectually curious. In a moment of candor, he told The Post’s Marc Fisher last summer that he has not read any biographies of presidents. He said he would like to someday but never has time. Then he explained that he does not need to read extensively because he reaches the right decisions “with very little knowledge other than the knowledge I [already] had, plus the words ‘common sense,’ because I have a lot of common sense.” Trump told Marc he is skeptical of experts because they can’t see the forest through the trees and lack his good instincts.

— This is a break with many of his predecessors. Barack Obama, George W. Bush and Bill Clinton all invited elite historians for private dinners at the White House. Each thought deeply about his place in history as he mulled weighty decisions. Bush, who majored in history at Yale, heavily employed historical analogies in his speeches. John F. Kennedy even hired Arthur Schlesinger Jr. to be his in-house historian.

— Trump’s very dark world view is one of the ways his lack of historical perspective manifests itself. David Nakamura contrasts how Obama and Trump see the world in a piece for today’s paper:

“Addressing the United Nations last fall, Obama took a moment to highlight for fellow world leaders what he called ‘the most important fact’ about the state of global affairs: Human existence on planet Earth is good — and getting better. War is down, he said, while life expectancy is up. Democracy is on the march, and science has beaten back infectious diseases. A girl in a remote village can download the ‘entirety of human knowledge’ on a smartphone. A person born today, Obama concluded, is more likely to be safer, healthier, wealthier and better-educated — and to see a path to prosperity — than at ‘any time in human history.’”

President Trump does not inhabit this world: “To Trump, the world is ‘a mess,’ as he said during a White House news conference this week. ‘It’s crazy what’s going on,’ Trump said. ‘Whether it’s the Middle East or you look at — no matter where — Ukraine — whatever you look at, it’s got problems, so many problems. Right now, it’s nasty.’”

“President Obama constantly reminded us that our own times are not uniquely oppressive,” said Douglas Brinkley, a presidential historian and author at Rice University. “There’s a feeling due to the 24-7 news cycle that everything is a crisis mode, when the fact of the matter is, Americans have it better now than ever before.”

During a town hall-style event with young people in Malaysia in September, Obama blamed the flow of information bombarding news consumers on televisions, computers and smartphones for making it appear “as if the world is falling apart.”“Everybody is shouting and everybody hates each other,” Obama said. “And you get kind of depressed. You think, ‘Goodness, what’s happening?’”

Trump, of course, consumes most of his news from cable television and Twitter.

What’s behind Trump’s growing flip-flops

 

President Trump is changing his tune on NATO, China’s currency, Syria and many other policies he campaigned on. The Post’s Jenna Johnson looks at why his stances have shifted now that he’s in the White House. (Jenny Starrs/The Washington Post)

— Bigger picture: One important reason the new president has flip-flopped so much in recent daysis because he has never grappled deeply or seriously with most issues. Trump has typically staked out whatever position was most politically expedient at that moment and then confidently argued for it, untethered by core convictions beyond a desire to make money, build his brand and win elections.”

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Read Hohmann’s entire piece at the above link. Trump is the logical culmination of years of “know-nothingism” by the GOP.

PWS

04-16-17

BIG ISSUE: Right To Counsel In Expedited Removal!

http://lawprofessors.typepad.com/immigration/2017/04/right-to-counsel-in-expedited-removal-amicus-brief-sign-on-request-for-attorneys-law-profs.html

ImmigratonProf Blog reports:

“Posted at the request of Kari Hong and Stephen Manning:

“We are authoring an amicus brief supporting access to private counsel in expedited removal.  In United States v. Peralta-Sanchez, 847 F.3d 1124 (9th Cir. 2017),the Ninth Circuit (2-1) held that there is no statutory or constitutional right for non-citizens to have access to counsel in expedited removal proceedings.  The brilliant federal defender Kara Hartzler argued the case and filed an en banc petition.

 This amicus brief filed by law professors, practitioners, and clinicians supports the request of Mr. Peralta-Sanchez for a recognized right to access to counsel.
The amicus brief makes three points (1) There is a significant private interest at stake given that expedited removal extends to those with claims to potential remedies (including asylum seekers and long-term residents), to those whom are mistakenly found not to have status when they are citizens or lawful permanent residents, and to those who live within 100 miles of the border, which reaches 66% of the U.S. population; (2) The right to counsel will improve accuracy of the determinations made in expedited removal proceedings to correct these recent and documented errors.  A 2016 study documented a substantial rate of success for immigrants with representation compared to those without in other immigration proceedings.  All reasonable inferences then support that the presence of counsel will ensure that those entitled to protections due in expedited removal proceedings will receive then; (3) The costs to the Government if non-citizens are permitted to hire private counsel are minimal.  Any delay arising from the adjudication of expedited removal proceedings form the presence of counsel arises as individuals entitled to protections simply receive them.  There is no compulsion for the Government to incur the costs of detention when alternatives to detention are available, less costly, more humane, and as effective.  There is no compulsion for the Government to hire a new corps of attorneys to contest these adjudications.  The USCIS routinely processes claims by non-citizens, including those with private counsel.  No disadvantage to the Government has occurred not to contest these proceedings, which include affirmative asylum claims, adjudication applications, and naturalization applications.
The amicus will be filed on Monday, April 17.  The final draft will be completed over the weekend and circulated when finished.  For those who wish to sign onto the brief, please sign here.
The deadline for signing will be 10:00 am ET on Monday, April 17.”
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This issue is huge. DHS is considering expanding “expedited removal” to include all individuals who can’t prove that they have been in the U.S. continuously for two years. Without the assistance of counsel, many individuals who have been here for a substantial period of time but do not have any “proof” readily available will be arrested, detained, and railroaded out of the country without being given a reasonable chance to establish that they should be entitled to a full due process hearing before a U.S. Immigration Judge at which they could apply for relief.
PWS
04-16-17

DHS “Jacks Up” Noncriminal Arrests!

https://www.washingtonpost.com/local/immigration-arrests-of-noncriminals-double-under-trump/2017/04/16/98a2f1e2-2096-11e7-be2a-3a1fb24d4671_story.html

“Immigration arrests rose 32.6 percent in the first weeks of the Trump administration, with newly empowered federal agents intensifying their pursuit of not just undocumented immigrants with criminal records, but also thousands of illegal immigrants who have been otherwise law-abiding.

U.S. Immigration and Customs Enforcement arrested 21,362 immigrants, mostly convicted criminals, from January through mid-March, compared to 16,104 during the same period last year, according to statistics requested by The Washington Post.

Arrests of immigrants with no criminal records more than doubled to 5,441, the clearest sign yet that President Trump has ditched his predecessor’s protective stance toward most of the 11 million undocumented immigrants in the United States.

Advocates for immigrants say the unbridled enforcement has led to a sharp drop in reports from Latinos of sexual assaults and other crimes in Houston and Los Angeles, and terrified immigrant communities across the United States. A prosecutor said the presence of immigration agents in state and local courthouses, which advocates say has increased under the Trump administration, makes it harder to prosecute crime.

“My sense is that ICE is emboldened in a way that I have never seen,” Dan Satterberg, the top prosecutor in Washington state’s King County, which includes Seattle, said Thursday. “The federal government, in really just a couple of months, has undone decades of work that we have done to build this trust.”

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Unfocused enforcement pouring cases into an already “saturated” U.S. Immigration Court system is a prescription for disaster. Moreover, because it would be impossible to remove all of the approximately 11 million individuals here without authorization, just arresting anyone an agent might encounter who is potentially removable will be highly arbitrary.

PWS

04-16-17

 

U.S. Kids Rally At White House Against Trump’s Deportation Agenda — “Don’t make us orphans in our own country!”

http://www.huffingtonpost.com/entry/immigrant-kids-white-house-protest_us_58f0069ee4b0da2ff85f9183?r9b&ncid=inblnkushpmg00000009

Michael McAuliffe reports in HuffPost:

“WASHINGTON — American children whose parents are undocumented immigrants brought a heartrending plea to the White House and President Donald Trump on Thursday: Don’t make us orphans in our own country.

The kids, among dozens who were organized by the group We Belong Together, fear that Trump’s crackdown on illegal immigration could deport their parents, even if they haven’t run afoul of the law in any other way.

Deportations dramatically increased during the Obama administration, but the focus was on immigrants who had committed serious crimes. The Trump administration’s orders stepping up enforcement include just about anyone.

Those undocumented immigrants often have American children. And they are afraid.

“I live with the fear of being separated from my mother every day,” said Leah, an 11-year-old from Miami whose mother is a domestic worker facing a deportation order.

“It is like when somebody you care about can die at any moment,” she added, standing outside the White House, accompanied by activists and other kids.  “Why can’t I just enjoy being a kid? I cannot sleep or do my homework. All I can think about is my mother being taken away from me. I am so worried about my life.”

A mom of two children who is in hiding narrowly avoided likely deportation in February, when she sought sanctuary in a Denver chuch. Jeanette Vizguerra, who has reported to Immigration and Customs Enforcement regularly for 20 years while she sought a visa to escape violence in Mexico, fled a hearing on her case when her advocates noticed a squad of police apparently ready to arrest her.

“My mom has been going through the struggle of getting threatened and us getting scared by ICE,” said her son, Roberto, 10.

I think it’s not fair for children to be living in fear or for parents not to be able to be with their children,” said her daughter, Luna, 12.

While those children and others all spoke of the worry they have of their own government, they also declared they would not relent in their bids to keep their families and other kids’ families whole.

“I want to tell Mr. Trump that he is a bully, and no matter how mean he is, and no matter how hard he tries, he will never break out spirit,” Leah said. “We are not afraid of you.”

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What kind of country makes “orphans of their own children?” What kind of national values do these “instill fear” programs represent? Whatever happened to the positive national values set forth by FDR and JFK?

Way back before there were Presidents, an inspirational leader once said:

“Suffer little children to come unto me, and forbid them not: for of such is the kingdom of God.”

Luke 18:16

Not a bad thing to think about on Good Friday and over Easter weekend.

Sadly, some of today’s leaders seem to have shifted the message to “let me make the little children suffer.” Wonder what He would have thought about that?

PWS

04-14-17

Former State Department Visa Guru Jeff Gorsky Says Travel Ban Exceeds President’s Statutory Authority — “No Precedent” For This Type Of Overly Inclusive Use!

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2017/04/11/jeffrey-gorsky-an-alternative-legal-argument-against-trump-39-s-travel-ban.aspx?Redirected=true

From Lexis NexIs:

There is, however, another legal argument against the travel ban that does not require looking at evidence outside of the judicial record: The scope of the ban on its face is overly broad and exceeds the president’s legal authority under the Immigration and Nationality Act. Although the plaintiffs in the Hawaii case posed this argument, at this point none of the courts that have ruled on the legality of the executive order have analyzed this issue. The statutory authority for the travel ban derives from INA Section 212(f), 8 USC 1182(f), which authorizes the president by proclamation to suspend the entry or impose restrictions on the entry of any aliens or class of aliens to the United States. This is not a plenary grant of authority, but requires a finding that the entry of such aliens is “detrimental to the interests of the United States.” A ban that covers an entire nationality based on a concern that a few of those nationals pose a security or criminal threat to U.S. interest exceeds the statutory authority because there is no evidence or reasonable basis to believe that the entry of some or most of the nationals in the ban would be detrimental to U.S. interests.

During my 30-year career at the U.S. Department of State, I was involved in numerous 212(f) determinations. All were supported by carefully drafted memos and cited specific evidence of detriment to U.S. interests. The Trump travel bans do not. There is no dispute that the president has longstanding authority to deny or restrict the admission of certain aliens by proclamation; it is one of the oldest immigration provisions in U.S. law. The first law to authorize the president to limit immigration based on proclamation was the Alien Enemies Acts of 1798, one of the Alien and Sedition Acts enacted in the John Adams administration. That act empowered the president by public proclamation during a state of war to exclude enemy aliens as “necessary for public safety”.

This authority was not invoked until the 20th century, with the advent of World War I. An act of May 22, 1918, provided for the president to establish by proclamation immigration restrictions during a time of war for the purpose of public safety. Based on the Alien Enemies Act and the 1918 act, President Woodrow Wilson made a number of proclamations involving enemy aliens. While not a total ban on admission of aliens with Austrian-Hungarian nationality, these proclamations significantly restricted the admission of these enemy aliens.

This authority was revived during World War II, following the declaration of a national emergency on May 27, 1941. An amendment to the act provided that the president might, upon finding that the interests of the United States required it, impose additional restrictions and prohibitions on the entry into and departure of persons from the United States during the national emergency. This provision was upheld by the Supreme Court in the case United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537.

The 1950 “Report of the Senate Judiciary Committee,” the primary background document on the McCarran-Walter Act of 1952, discussed the history of the enemy aliens provisions at length, and concluded that this was a necessary authority. This authority was carried over into Section 212(e) (now f) and Section 215 of the INA.

In the past 35 years, this authority has been used 43 times but never as broad as with Trump’s executive orders. Most actions were limited to officials of foreign governments who engaged in specified policies considered detrimental to U.S. foreign policy or other U.S. interests — not blanket bans based solely on nationality.

The current travel ban, therefore, is unprecedented in its scope. Even if it is accepted that the specified countries pose a threat to the United States, the inclusion in the ban of all nationals from those countries is not reasonable, since there is no evidence that the admission of many or most such aliens would be detrimental to U.S. interests. For example, the ban includes babies and minor children, although they have neither the physical or legal capacity to commit acts of terrorism or criminality that would be detrimental to U.S. interests. While the executive order allows for a case-by-case discretionary waiver for minors, the availability of a discretionary waiver requiring a finding that the admission of such alien “would be in the national interest” does not cure the underlying lack of legal authority under 212(f) to bar persons such as young children who do not pose a credible threat to U.S. interests.

If the president can bar all nationals of a country based on speculative and vague concerns, absent any evidence relating to the specific individual who is barred admission, the president would have virtually absolute authority to bar all aliens from admission to the U.S. Every country in the world, including countries that would not normally be considered to pose a security threat to the U.S., like Japan and the United Kingdom, have some nationals who could theoretically pose a terrorist or criminal threat that could be used as a pretext to ban all nationals from that country. Such sweeping plenary authority does not exist in any other portion of the INA. In the over 200 years in which the president has had authority to limit the admission of aliens by proclamation, no president has ever before claimed this broad an authority.”

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In prior lives, I had the pleasure of working with Jeff on a number of issues. Smart guy, nice guy, always very helpful. Doesn’t mean he’s right or wrong on this, but his point makes sense to me.

PWS

04-13-17

HUFFPOST POLITICS: Despite Bannon’s Apparently Waning Influence, “Turbocharged” Sessions Will Keep “Ethno-Nationalist Agenda” Rolling At Full Speed At DOJ! Bad News For Immigrants, African-Americans, Refugees, Muslims, LBGT Individuals, Forensic Science, Innocent Defendants, Minor Offenders, Taxpayers, The U.S. Constitution, Many Women, & Social Justice In America!

http://www.huffingtonpost.com/entry/jeff-sessions-steve-bannon_us_58efb376e4b0bb9638e23542

Paul Blumenthal writes:

“No matter what Bannon’s fate, however, his strand of ethno-nationalism will live on in the Trump Justice Department under Attorney General Jeff Sessions. The 70-year-old former Alabama senator has already set the Justice Department on a new path by targeting immigrants, reining in police department reform efforts and curtailing efforts to protect voting rights.

“While many are focused on how Bannon is losing influence in the White House, those concerned with immigrant justice ― and I suspect those concerned with racial justice, police reform and voting rights, too ― are focused on the rise of a turbocharged Sessions,” Frank Sharry, executive director of the pro-immigration reform group America’s Voice, said in an email to HuffPost.

Bannon and Sessions share a long history of mutual support and policy agreement. They spent months together with Stephen Miller, a former Sessions aide who now works in the White House, plotting strategy on how to enact their shared agenda of limiting immigration to the U.S. in order to maintain a European and Christian identity. In 2016, Bannon declared Sessions “one of the intellectual, moral leaders of this populist, nationalist movement in this country.” After both moved to Trump’s administration, Bannon called Sessions the White House “clearinghouse for policy and philosophy.” Like Bannon, Sessions declares his policy objective as defeating “soulless globalism.”

. . . .

In another appearance on Bannon’s radio show, Sessions endorsed the Immigration Act of 1924, which specifically limited immigration based on race and religion, in the context of current immigration trends. “In seven years, we’ll have the highest percentage of Americans, non-native born, since the founding of the Republic,” Sessions said, while praising the 1924 law that was used to prevent Jewish immigration before and during the Holocaust.

Like Bannon, Sessions believes immigration from Middle Eastern countries poses a national security risk. He agrees that Western leaders have failed to protect their Judeo-Christian heritage by opening the door to refugees.

In one radio interview, after Bannon compared the migration of Syrian refugees to an infamous racist French book, he asked Sessions.: “Do you believe the elites in this country have the backbone, have the belief in the underlying principles of the Judeo-Christian West to actually win this war?”

“I’m worried about that,” Sessions replied.

The two nationalist Trump supporters share more than immigration policy preferences. The reversal of police reform efforts and reinvigoration of the War on Drugs pushed by Sessions as attorney general fits with Bannon’s efforts at Breitbart to label Black Lives Matter protesters as racists, while perpetuating racist stereotypes of African Americans through the site’s Black Crime section.”

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For those who hoped that President Trump’s sudden shift to more “centrist” positions on trade and foreign policy might carry over into immigration policy, dream on! Bannon might be “on the ropes,” but Sessions and Stephen Miller still have the President’s ear on their restrictionist, nationalist positions on immigration.

While badly needed, reasonable bipartisan immigration reform would be within Trump’s reach, that’s not going to happen. Buoyed by the immediate decrease in Southern Border apprehensions, Trump, Sessions, and MIller (Gen. Kelly appears to gone AWOL on immigration policy — he just parrots what Sessions and the nationalist restrictionists tell him — his stature as former General with integrity shrinks every day) intend to arrest, detain, deport, and threaten unless and until the Article III Courts stop them. And whether that will happen is still an open question.

Liz was right!

PWS

04-13-17

 

IT’S TRUE! — DOJ Eliminates U.S. Immigration Judges’ Only Annual Training! — Quality & Professionalism “De-Prioritized” In Trump Era — Billions For Enforcement & Incarceration — Crumbs For Due Process — When Is Congress Going To “Just Say No?”

Reliable sources have now confirmed what I reported in this blog earlier this week (http://wp.me/p8eeJm-Ge): the DOJ has eliminated the U.S. Immigration Court’s only formal annual training. U.S. Immigration Judges have been ordered to schedule cases during the week normally reserved for advanced training, continuing judicial education, and professional development.

This news couldn’t come at a worse time for the beleaguered U.S. Immigration Courts. Dozens of new U.S. Immigration Judges have been appointed in the last year, most of whom have never met their judicial colleagues across the nation.

Moreover, this would be their only opportunity beyond some brief “basic training” to pursue continuing judicial education in this complex, controversial, and ever-changing field. It’s also an opportunity to “catch jump” on what all the Circuit Courts of Appeals are doing, as well as to hear from BIA Appellate Immigration Judges about developments at the Board. Additionally, it is a key opportunity to address the disturbing, continuing problem of inexplicable discrepancies in asylum adjudication (84% grant rate in one Immigration Court; 2% grant rate in another) within the Immigration Court system.

Some of the training at the Annual Conference is statutorily required, such as updates under the International Religious Freedom Act, which, perhaps ironically, often highlights the persecution faced by Christian groups in China and the Middle East, a subject on which the Administration has expressed concern. Other sessions cover ethics training required by DOJ regulations.

In addition, the DOJ considers U.S. Immigration Judges to be “DOJ attorneys.” As a consequence, judges are required to maintain “active” status in at least one state bar, even though they perform only quasi-judicial duties and therefore would be eligible for “active judicial status” in many states.

The Annual Conference usually meets the “mandatory CLE” requirements of various state bars. But, when there is no Annual Conference, individual judges must take leave from the bench to complete the coursework required by their respective state bars. Therefore, Immigration Judges are off the bench learning about state real estate transactions and changes in tort law, when they could instead be advancing their knowledge in immigration and refugee law as well as “best judicial practices” in Federal Courts.

I get frequent reports of cratering morale among Immigration Judges and court staff, increases in the already extraordinary levels of stress, and impending retirements of some of the best and most experienced judges. Some Immigration Judges returning from details to hastily thrown together so-called “Immigration Courts” in DHS detention centers were shocked, upset, and angered to see with their own eyes that individuals with viable claims for relief, most of them asylum or related protection, were being “duressed” by the coercive conditions and atmosphere in DHS detention to abandon their claims and take “final orders of removal,” just to be out of detention. And, the Administration is just getting started on its plans for “Incarceration Nation.”

Lawyers report that they show up at Immigration Court with clients and witness in tow prepared for merits cases which have been pending for years, only to find out that the cases have been rescheduled to a dates several more years in the future, without advance notice, so that the Immigration Judges can be detailed to a detention centers in other parts of the country.

When is Congress finally going to step in and provide some meaningful oversight of the unfolding due process disaster in U.S. Immigration Courts? Regardless of where one stands on the philosophical issues surrounding immigration enforcement, providing due process and complying with constitutional, statutory, and international treaty obligations, including reasonable access to counsel (which is not available in most DHS detention center locations), should be a bipartisan priority.

Isn’t it time for a bipartisan group of GOP legislators concerned about the billions of dollars being mindlessly poured into immigration enforcement and Democrats who are concerned about due process getting together and holding the Trump Administration accountable for what’s really happening in our Immigration Courts?

PWS

04-13-17

 

DUE PROCESS CRISIS IN THE U.S. IMMIGRATION COURTS: New Report Finds That Detained Migrants In The Arlington & Baltimore Courts Face Severe Access To Counsel Problems Which Can Be “Outcome Determinative!”

https://populardemocracy.org/sites/default/files/DC_Access_to_Counsel_rev4_033117 (1).pdf

This report (see link) was prepared and issued by the Center For Popular Democracy. Here are some key findings:

  • Every year, nearly 4,000 people in Washington, D.C. metropolitan area courts, Arlington, Virginia, and Baltimore, Maryland, face deportation in civil immigration court without the assistance of a lawyer. Based on original data analysis of Department of Justice records obtained through a Freedom of Information Act request, seven out of ten detained individuals in immigration court removal proceedings in Arlington, VA and eight out of ten in Baltimore, MD did not have any legal representation.
    • ■  People without lawyers faced enormous odds in fighting their deportation cases. Among detained immigrants without lawyers, people in Arlington were only successful in their cases 11 percent of the time and unrepresented people in Baltimore only successful 7 percent of the time.
    • ■  Having a lawyer in Arlington more than doubled a person’s chances of being able to remain in the U.S. and quadrupled a person’s chance of obtaining relief in Baltimore.
  • ■  Between 2010 and 2015, Immigration and Customs Enforcement (ICE) detained nearly 15,000 people in local and county jails2 throughout the states of Maryland and Virginia. In both regions, people who did not have lawyers were more than twice as likely to remain detained during the entirety of their immigration case, even if they may have been eligible for release on bond.
  • **************************************

Read the entire report which has some case histories in addition to charts and graphs.

The findings are disturbing because the Arlington and Baltimore Immigration Courts generally are considered among the best in the nation in striving to provide due process. The judges in each court are committed to representation and often go out of their way to encourage and facilitate the appearance of counsel. The ICE Chief Counsel’s Offices also appreciate and support pro bono representation.

Additionally, as noted in the report, the DC-Baltimore metropolitan area has a number of great organizations dedicated to providing pro bono lawyers, as well as local practitioners, “big law” firms, and numerous outstanding law school clinics, all of which support the pro bono program.

Yet even under these generally favorable conditions, the overwhelming majority of individuals on the detained dockets in both courts appear pro se, without a lawyer. And, the results with a lawyer are very significantly better than for those forced to represent themselves.

I fear that the new program of expanded immigration detention being planned by DHS, with courts operating in obscure, out of the way locations along the Southern Border, will further impede already limited access to counsel and therefore further degrade due process in our U.S. Immigration Courts.

Frankly, I have not seen any mention of the importance of due process or facilitating access to counsel in any of the many Trump Administration pronouncements on immigration. It’s all about enforcement, detention, removals, and prosecutions. Fairness and due process, which should always be paramount concerns, appear to be ignored.

In the end, it likely will be up to the already overworked and stressed pro bono bar, human rights groups, and community-based NGOs to enforce immigrants’ rights to counsel and to full due process. And, ultimately, that’s probably going to require litigation and intervention by the Article III Courts.

Thanks to Adina Appelbaum, who worked on this report, for bringing it to my attention.

PWS

04/13/17

 

POLITICO: Immigration Advocates Find Area Of Agreement With AG Sessions: Plan To Boost Troubled Immigration Courts — But, Concerns Remain That Judicial Hiring Could Again Be Politicized — Those Who Care About Due Process Should Carefully Watch The Results Of The “Streamlined” Judicial Vetting System!

http://www.politico.com/agenda/story/2017/04/the-one-area-jeff-sessions-and-immigration-advocates-agree-000411

Danny Vinik reports:

“Attorney General Jeff Sessions directed attorneys from the Department of Justice on Tuesday to increase the enforcement of U.S. immigration laws, including laws against unlawful entry, human smuggling and identity fraud. It was yet another escalation of the Trump administration’s crackdown on undocumented immigrants, and immigrant-rights groups blasted the policy changes as ineffective and potentially illegal.

For all their opposition to the Trump administration’s immigration agenda, though, advocates actually back one of the new policies: the increased support for the immigration courts.

Sessions announced that DOJ will seek to add 75 immigration judges to the courts over the next year and will implement reforms to speed up the hiring process. These changes address a real problem with the immigration system—a nearly 600,000-case backlog at the immigration courts—and the move was a rare occasion in which advocates applauded the administration, though they were concerned how Sessions would implement the changes.

“We are very happy at the notion of increasing the amount of immigration judges and being able to address the backlog,” said Jennifer Quigley, an immigration expert at Human Rights First. “But as a senator and now as AG, we’ve always had concerns that Sessions’ motivation is to increase the number of deportations.”

. . . .

Experts largely blame Congress for the backlog, since lawmakers significantly increased resources for immigration enforcement without a commensurate increase in funding for the immigration courts. But in recent years, Congress has increased the number of authorized immigration judges, most recently in 2016 when it provide funding for an additional 55 judges, raising the authorized number from 319 to 374. However, even with enough money, EOIR has struggled to quickly hire judges, as the hiring process can take more than a year and retirements have created additional openings. Currently, there are 312 immigration judges nationwide, a significant increase over a year ago but still far below authorized levels. Trump’s budget blueprint proposed funding 449 judges in fiscal 2018, a significant increase that could find bipartisan support on Capitol Hill.

More important than the request for additional judges, however, may be the hiring reforms. EOIR and DOJ both declined to comment on how the Justice Department was reforming the hiring process for immigration judges. Speaking to border patrol personnel at the U.S.-Mexico border Tuesday, Sessions provided few details. “Today, I have implemented a new, streamlined hiring plan,” he said. “It requires just as much vetting as before, but reduces the timeline, reflecting the dire need to reduce the backlogs in our immigration courts.”

Advocates worry that the hiring process could become politicized, with judges brought on who want to implement specific policies instead of fairly enforcing the law. “The idea of onboarding judges quicker and having more judges is a great thing,” said Joshua Breisblatt, a policy analyst at the American Immigration Council. “But we need to see what it looks like, that it won’t be political.” The language in the budget blueprint was particularly concerning, advocates said, because it seemed to indicate that the courts are a tool for increasing deportations rather than a neutral arbiter of immigration claims.

“We were not happy with the way it was framed,” said Quigley.

It’s not an unrealistic concern. Immigration judges are technically employees of the Department of Justice, a structure that inherently creates a conflict of interest, since their job is to rule on immigration cases that are pushed by DOJ prosecutors, whereas most of the judiciary is independent. Advocates and the immigration judges union have long pushed to remove the immigration courts from the DOJ. And during the Bush administration, a DOJ investigation found that several immigration judges received their jobs due to their political connections, a scandal that serves as a warning today.

Despite those concerns, experts hope that Sessions and EOIR will undertake the hiring process in a timely and impartial manner, filling the bench with qualified judges who have enough time to understand the cases before them. As Sandweg said, “It’s something that’s long overdue.” In such a world, the additional judges could reduce the backlog, increasing the number of deportations, while spending more time on complicated asylum cases, giving asylum seekers more time to fairly present their cases and receive careful consideration.

In such a world, it’s possible that both the Trump administration and advocates could come out happy—a scenario almost impossible to imagine today.”

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

Sessions is certainly right to address the ridiculous 18-24 month hiring cycle for U.S. Immigration Judges, and should get credit for making reform one of his top priorities. He also should be credited with focusing attention on the 542,000 case backlog, something that the Obama Administration seemed to have preferred to ignore as it mushroomed in front of their eyes. (As I said in this blog yesterday, I’m not convinced that even the 125 additional Immigration Judges proposed by Sessions over the next two years will effectively address a pending docket of that magnitude: http://wp.me/p8eeJm-FQ. But, it’s a start.)

However, the devil is in the details. And, the details of Session’s “streamlined judicial hiring” have not been made public, although the Attorney General said they were “implemented” on April 11.

Remarkably, I have learned that as of today, April 12, both EOIR Management and the union representing U.S. Immigration Judges (of which I am a retired member) were “totally in the dark” about the contents of the plan. That means it was “hatched’ at the DOJ without any meaningful input from those in the U.S. Immigration Court system or the court’s “stakeholders” — those representing the interests of the hundred of thousands of individuals with cases currently before the court or who might come before the court in the future. That’s troubling. It also appears that members of Congress had not been briefed on the hiring changes.

What’s even more troubling is that it’s not just about the inexcusably slow and bureaucratic hiring practices of the DOJ and EOIR. It’s also about results. During the Obama Administration, although officials claimed that the system was “merit-based” the results suggest that it was anything but.

According to informed sources who have done the math, an amazing 88% of those selected were from government backgrounds and 64% were from ICE, which prosecutes cases before the Immigration Court. I have had reports of numerous superbly qualified individuals from the private sector whose applications were rejected or put on indefinite hold without any explanation.

So, it looks like the many-layered, glacially slow, inefficient, overly bureaucratized process used by the DOJ and EOIR was actually an elaborate “smokescreen” for a system that was heavily weighted toward selecting “government insiders” and against selecting those who had gained experience by representing immigrants or advocating for their rights. The “Appellate Division” of the U.S. Immigration Court, the BIA — which is supposed to be the “top administrative court” in immigration — hasn’t had a judge appointed from outside the Government since 2000, more than 16 years and two full administrations ago!

Based on performance to date, I’m not particularly optimistic that AG Jeff Sessions is going to make the changes necessary to establish a true merit-based system for Immigration Judge hiring that, in turn, will create an immigration judiciary representing more diverse backgrounds and experiences. But, hope springs eternal, and I’d be happy if he proves my skepticism to be wrong.

Only time will tell. But, the quality and composition of the “Sessions era” immigration judiciary is something that everyone who cares about due process and justice in America should watch closely.

PWS

04/12/17

 

REUTERS: “Aimless Docket Reshuffling” (“ADR”) Confirmed — “Detailed” U.S. Immigration Judges Pulled From Two Border Courts For Lack Of Cases — Meanwhile, “Home” Dockets Spiral Out Of Control — Mixed Up Priorities, Poor Planning, Political Interference Waste Taxpayer’s Money, Inconvenience Public, Deny Due Process, As DOJ’s Mismanagement Of U.S. Immigration Courts Continues Under Sessions — 2 Judges, 3 Weeks, 4 Total Cases, As Backlog Hits 542,000!

http://www.reuters.com/article/us-usa-immigration-judges-idUSKBN17D2SI

Julia Edwards Ainsley and Kristina Cooke report in Reuters:

“Two U.S. immigration judges recently sent to the Mexico border to process asylum requests from migrant women and children are being recalled as they have so few cases to hear, according to two people familiar with the matter.

The dearth of cases at two Texas facilities where the judges are based can be traced to a sharp drop in illegal border crossings by women and children since U.S. President Donald Trump took office in January.

Eight immigration judges were reassigned from their regular courts to detention centers at the border beginning on March 20 as part of Trump’s executive order to curb illegal immigration.

Six of the judges have had full dockets, handling dozens of cases per week. But the two at detention centers housing women and children in Dilley and Karnes County, Texas had so few cases their presence was deemed a waste of resources by the U.S. Department of Justice, according to one of the sources.

The Department of Justice did not immediately respond to a request for comment.

The number of parents and children apprehended at the U.S. Mexico border in March dropped to just over 1,000, a 93 percent fall from December, the Department of Homeland Security reported last week.

The decline follows Trump’s harsh rhetoric on illegal immigration and policies which classify almost all illegal migrants as subject to deportation.

The judges were deployed to the border in an effort to quickly hear the claims of migrants seeking asylum so that those deemed ineligible could be deported.

In more than three weeks at the border, the judge in Dilley had no hearings and the judge in Karnes County had four, according to a spokeswoman for the U.S. Department of Justice’s Executive Office of Immigration Review. [emphasis added].

. . . .

The judges deployed to the border left behind scheduled hearings in their home courts. As of early March, immigration courts were weighed down by a record backlog of more than 542,000 cases.”

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

Haste makes waste. Meddling by political officials with no understanding of how the Immigration Court system works and who are not committed to due process and fairness as “mission one” has no place in our U.S. Immigration Court system, or indeed in our American system of justice. America needs an independent Article I Immigration Court now!

To further illustrate how money is being misdirected and due process undermined by the DOJ’s mal-administration of the U.S. Immigration Courts, I have heard “rumors” from several sources that the annual U.S. Immigration Judge Training Conference will be cancelled this year. This is despite some obvious quality control issues, such as gross disparities in asylum grant rates and and a gradual uptick in critical comments about the legal and factual quality of decisions by both trial and appellate judges made by some U.S. Courts of Appeals as they review removal orders. Moreover, with dozens of newly-hired Immigration Judges on board who have never attended a national training conference, there has never been a more critical time for effective, in-person training. While money is being poured down the drain on expensive, unneeded, and inappropriate details of judges, the real needs of the court system are going unmet by the DOJ.

PWS

04/12/17

 

IMMIGRATIONPROF BLOG: Three Cheers For NY! — State Becomes First To Guarantee Representation For All Detained Immigrants!

http://lawprofessors.typepad.com/immigration/2017/04/new-york-state-becomes-first-in-the-nation-to-provide-lawyers-for-all-immigrants-detained-and-facing.html

Dean Kevin Johnson writes:

“The Vera Institute of Justice and partner organizations today announced that detained New Yorkers in all upstate immigration courts will now be eligible to receive legal counsel during deportation proceedings. The 2018 New York State budget included a grant of $4 million to significantly expand the New York Immigrant Family Unity Project (NYIFUP), a groundbreaking public defense program for immigrants facing deportation that was launched in New York City in 2013.

New York has become the first state to ensure that no immigrant will be detained and permanently separated from his or her family solely because of the inability to afford a lawyer. Without counsel, a study shows, only 3% of detained, unrepresented immigrants avoid deportation, but providing public defenders can improve an immigrant’s chance of winning and remaining in the United States by as much as 1000%.

NYIFUP has been operating in two of the four affected upstate immigration courts on a limited basis since 2014 with funding from the New York State Assembly and the IDC. In the just-ended fiscal year, the funding was sufficient to meet less than 20% of the need upstate. In New York City, NYIFUP has been representing all financially eligible, otherwise unrepresented detained immigrants since 2014 with funding from the City Council.

Research has shown that keeping immigrant families together saves money for the state’s taxpayers in increased tax revenues and less need for families left behind to draw on the social safety net. New York State employers also receive significant economic benefits from avoiding the loss of productivity when their employees are detained and deported, and the consequent need to identify and train replacement workers.

The first public defender program in the country for immigrants facing deportation, the NYIFUP Coalition includes Vera, the Immigration Justice Clinic of Cardozo Law School, the Northern Manhattan Coalition for Immigrant Rights, Make the Road New York, and The Center for Popular Democracy. The Erie County Bar Association Volunteer Lawyers Project is a NYIFUP Coalition partner upstate. Brooklyn Defender Services, the Legal Aid Society, and The Bronx Defenders are Coalition partners in New York City.

Several cities and states, including Los Angeles, San Francisco, Chicago, Washington, D.C., and California have recently begun efforts to design similar programs.”

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

Good for New York! I hope that other states follow suit.

Representation is the most important contribution that those “outside the system” can make to improving due process in the U.S. Immigration Courts. And, nowhere is it needed more than in often out of the way detention centers. As noted in the article, there is no doubt that representation makes a difference in outcome — a huge difference.

In fact, the statistical difference is so great that one might think that those officials responsible for the U.S. Immigration Court system would long ago have determined that no case could proceed in accordance with due process unless and until the respondent had a lawyer. But, that would be some other place, some other time.

In the meantime, let’s all be thankful for the outstanding example that New York has set!

PWS

04/10/17

 

HISTORY: GEORGE WILL: War Is Hell On The Home Front Too — World War I Unleashed Deadly Nationalism, Xenophobia, & Racism In America, All In The Guise Of False “Patriotism” — Set The Stage For Even Worse Things To Follow!

https://www.washingtonpost.com/opinions/what-world-war-i-unleashed-in-america/2017/04/07/4a8412b4-1b07-11e7-855e-4824bbb5d748_story.html?utm_term=.e64d2fbd91cf

“Woodrow Wilson imposed and incited extraordinary repressions: “There are citizens of the United States . . . born under other flags . . . who have poured the poison of disloyalty into the very arteries of our national life. . . . Such creatures of passion, disloyalty and anarchy must be crushed out. . . . They are infinitely malignant, and the hand of our power should close over them.”

His Committee on Public Information churned out domestic propaganda instructing the public how to detect pro-German sympathies. A 22-year-old Justice Department official named J. Edgar Hoover administered a program that photographed, fingerprinted and interrogated 500,000 suspects. Local newspapers published the names of people who were not buying war bonds or otherwise supporting the war. People were fired or ostracized for insufficient enthusiasm. The Espionage Act of 1917 made it a crime to “collect, record, publish or communicate” information useful to the enemy.
In Illinois, Robert Prager, a German American coal miner suspected of spying, was stripped, marched through the streets and hanged. The Post deplored such “excesses” but applauded the “healthful and wholesome awakening in the interior part of the country.”

Josef Hofer and his two brothers were South Dakota Hutterites whose faith forbade any involvement in war, including wearing a military uniform. They were arrested in March 1918, and a week after the armistice they were sent to Fort Leavenworth, Kan. Arriving at the military prison around midnight, they stood naked for hours in a 17-degree November night. Then they were suspended naked from the bars of their cells, their feet barely touching the ground, refusing to wear the uniforms left in their cells. Fed only bread and water, after two weeks David Hofer was allowed to telegraph Josef’s wife, telling her that her husband was dying. He died the morning after she arrived. Prison guards mocked his corpse by dressing it in a uniform.”

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

I have to admit that the experience of the Trump Administration is making me look at George Will, whom I had previously related to on few topics than baseball, in a new, more appreciative, light.

I continue to be amazed at how many folks seem to delight in the idea of their country going to war. Of course, the overwhelming number of celebrants are those who don’t actually fight the wars.

But, it’s still going on! Donald Trump has been bumbling through the first hundred days of his Presidency. But, finally, in contradiction to his recent statements, his campaign promises, and his cutting America’s already inadequate humanitarian response to vulnerable Syrian refugees, he lobs some missiles at a Syrian airbase.

The result, of course, was militarily insignificant, particularly since we warned the Russians (who presumably warned their  Syrian clients) in advance. Syrian (or Russian) bombers took off from the same airbase the next day to hit the same Syrian cities, only this time being careful to kill civilians with “conventional” weapons rather than gas. Are civilians hit with conventional bombs really less dead than those killed in gas attacks?

Trump couldn’t begin to tell you what his strategy is or what he sees as the “endgame” in Syria. Yet, the next morning, many (not all) of his critics were congratulating him for finally doing something “Presidential.” I guess it doesn’t get much more “Presidential” than ordering a missile attack.

Back to World War I. It started for no apparent reason, and there were no discernible principles or values at stake. It was a product of weak leaders, irrational nationalism, a gullible public, and imbecilic generals on all sides. In the end, it not only killed and maimed millions, but set the stage for Adolf Hitler, Joseph Stalin, large scale genocide, and the absolute horror of World War II.

Although the U.S. has fought some smaller wars since World War II, we haven’t really “won” any of them (except for fairly insignificant skirmishes like Grenada and Kuwait). But, that hasn’t stopped folks from thinking that the next one will be the “best war ever,” and Presidents from believing that dropping bombs and sending missiles will make them look like brave, courageous, and wise leaders — in other words, “Presidential.”

PWS

04-09-17

 

 

JAMESTOWN NY POST-JOURNAL: GW Law Immigration Clinic Students Sarah DeLong & Maley Sullivan On “Bridging The Gap” With Immigrants!

http://www.post-journal.com/opinion/2017/04/bridging-the-gap-between-us-and-immigrants/

“As third-year law students and student-attorneys of the Immigration Clinic at The George Washington University Law School, we have the honor of representing immigrants from around the world while guiding them through our very complex immigration system.

Through this experience, we’ve learned that immigrants are just like us. They share our values of family and community; education and opportunity; freedom and security. They’re individuals who are trying to make the best decisions for themselves and for their loved ones.

But in many ways immigrants are not like us. There are some things that you and I will never fully understand. There are some things that we, having grown up under the cloak of privilege afforded us by our status as natural born citizens of the United States, will never have to endure.

So how do we bridge this gap? Why should we take time from our uniquely challenging lives to appreciate and understand our privilege? To what end?

For many student-attorneys, the answer is simple: I am an immigrant. I was an immigrant. My parents are or were immigrants. For the two of us, and countless others, however, what we view as our obligation to welcome and accommodate immigrants has been challenged regularly by our government, our communities, and even our families.

. . . .

We have learned countless lessons from working in the Immigration Clinic. Not the least, we have learned that, although our privilege may protect us from ever having to stand in the shoes of our clients, it has afforded us the extraordinary opportunity to confront the status quo and encourage reconciliation.”

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

I encourage everyone to read the complete article at the link. Thanks to Professor Alberto Benitez of the GW Immigration Clinic for bringing this to my attention. And, thanks to Sarah and Maley for your caring, your insights, and all that you are doing for America.

PWS

04-09-17

 

 

4th Cir. Judges File Separate Opinion Praising Bravery Of Transgender Teen — Take Shot At Those On The “Wrong Side Of History!”

Senior Judge Davis, joined by Judge Floyd said this in a published separate opinion:

“Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.

G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.

. . . .

 

G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted — but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.”

The full opinion is well worth a read. Here’s a link: 161733R1.P-4th Circuit GG

Judge Davis incorporates this poem,

Famous by N.S. Nye:

The river is famous to the fish.

The loud voice is famous to silence, which knew it would inherit the earth before anybody said so.

The cat sleeping on the fence is famous to the birds watching him from the birdhouse.

The tear is famous, briefly, to the cheek.

The idea you carry close to your bosom is famous to your bosom.

The boot is famous to the earth, more famous than the dress shoe, which is famous only to floors.

The bent photograph is famous to the one who carries it and not at all famous to the one who is pictured.

I want to be famous to shuffling men who smile while crossing streets, sticky children in grocery lines, famous as the one who smiled back.

I want to be famous in the way a pulley is famous,
or a buttonhole, not because it did anything spectacular, but because it never forgot what it could do.

Here’s an article from yesterday’s Washington Post explaining the context of the 4th Circuit’s procedural decision and why the published, signed separate opinion is unusual.

https://www.washingtonpost.com/local/public-safety/judges-hail-transgender-teen-gavin-grimm-as-human-rights-leader/2017/04/07/ade47f12-1bc8-11e7-bcc2-7d1a0973e7b2_story.html?utm_term=.11ce2b2d3a58

The case is G.G. v. Gloucester County School Board.

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

The Trump Administration’s attacks on vulnerable individuals such as Muslims, migrants, and now transgender students have given rise to an interesting new phenomenon in the U.S. Courts of Appeals: separate published opinions vigorously commenting on or dissenting from what normally would be routine, unsigned, unpublished, barely noticed, procedural orders.

Another good example was the recent spate of published opinions dissenting and concurring with the granting of an uncontested motion by the Government to dismiss the appeal from the TRO in State of Washington v. Trump (“Travel Ban 1.0”) which I discussed in an earlier blog: http://wp.me/p8eeJm-vM

In the 9th Circuit case, several judges used separate opinions to lash out at their colleagues and show their support for the Trump Administration’s “Travel Ban 1.0.” This drew a reaction from some of their colleagues who accused the dissenters of using the forum and device of the separate opinions to deliver a message to politicians, other courts, and the parties for use in future litigation that was not yet before the court. In other words, to influence matters that were not part of the the actual “case or controversy” before the court, which was being dismissed without objection by either party.

In any event, in just a short time in office, the Trump Administration has “gotten the attention” of normally aloof and “ivory towerish” Federal Appellate Judges who seem to be energized and eager to engage in the fray with the Administration, its detractors, and each other.

PWS

04-09-17

 

Judge Neil Gorsuch Confirmed By Senate On 54-45 Vote — Will Be Sworn In As Associate Justice On Monday, Replacing The Late Justice Antonin Scalia!

https://www.wsj.com/articles/senate-expected-to-confirm-neil-gorsuch-as-supreme-court-justice-1491557404

The WSJ reports:

“WASHINGTON—The Senate on Friday confirmed Neil Gorsuch to the Supreme Court, ending a 14-month vacancy on the high court that spanned two presidential administrations and sparked one of the most bitter political fights in Washington in recent memory.

In a vote that fell largely upon partisan lines, Judge Gorsuch was approved as the next associate justice of the Supreme Court by 54-45. Three Democrats crossed the aisle to support Judge Gorsuch’s nomination, while he drew unanimous support from Senate Republicans.

“This brilliant, honest, humble man is a judge’s judge. And he will make a superb justice,” said Sen. Chuck Grassley, an Iowa Republican and chairman of the Senate Judiciary Committee.

Senate Minority Leader Chuck Schumer (D., N.Y.), who had opposed Judge Gorsuch as an out-of-the-mainstream conservative, acknowledged defeat but said he hoped the new justice wouldn’t be bound by the conservative groups that advised President Donald Trump on the choice.

“We are charging Judge Gorsuch to be the independent and fair-minded justice that America badly needs,” Mr. Schumer said. “If he is instead a justice for the Federalist Society and the Heritage Foundation, that will spell trouble for America.”

The only senator not voting was Johnny Isakson (R., Ga.), who is recovering from surgery.

The new justice will be sworn in Monday morning during a private ceremony at the Supreme Court, followed later in the day by a public ceremony at the White House. He will join his new colleagues on the bench on April 17, filling the seat held for three decades by the late Justice Antonin Scalia.”

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

I continue to think that the Democrats made a mistake in picking the Gorsuch nomination to make a “stand.”  A stand on what? That a GOP President doesn’t have a right to appoint a well-qualified conservative jurist to the Court? How does that follow? Doesn’t a Democrat have a right to appoint a well-qualified more liberal jurist?

Yes, the GOP and Senate Majority Leader Mitch McConnell (R-KY) treated an outstanding, moderately liberal jurist, Chief Judge Merrick Garland with total shabbiness and disrespect. But, hey, we’re talking about Mitch McConnell here; perhaps one of the wiliest and shrewdest legislators ever to walk the halls of the Senate, but hardly anyone’s choice for the classiest or most decent.

And none of this was Judge Gorsuch’s fault. He respects Chief Judge Garland and made it clear that he did not agree with the way he was treated.

The political problem was that the Democrats had lost control of the Senate, and notwithstanding making control of the Supremes a major campaign issue, they lost both the Presidency and the Senate in 2016. Winners have leverage, losers don’t.

The real solution here is for the Dems to get out there and win some elections, at all levels. And, if anything, the ill-advised Gorsuch battle made them look no more like the “party of adults” than the  GOP.

I think Justice Gorsuch will be engaged, scholarly, collegial, and fair within his own very conservative philosophical framework. And, all of us who are or have been judges are, to some extent, prisoners of our own backgrounds, philosophies, and life experiences.

But, being on a collegial court with those holding other views forces a judge to listen to other views, consider other possible outcomes, and to reexamine carefully the legal and intellectual justifications for one’s own positions. That’s about all you can ask of a jurist. And, I’m relatively certain that somewhere down the line, Judge Gorsuch will cast some votes, write, and join some opinions that will surprise both his supporters and detractors.  And, that will be a good thing for the U.S. justice system. It’s what judicial independence and separation of powers is all about.

PWS

04/08/17