Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett could only wish to have experienced a fraction of the media praise being heaped on Supreme Court nominee Ketanji Brown Jackson.
If anything, it should be the other way around. President Donald Trump’s Supreme Court appointees showed immense legal ability and fidelity to the rule of law before joining the Court.
The politically incorrect truth is that President Joe Biden’s nominee, who is set to face Senate questioning on Monday, is a mediocre judge whose politics trump the law.
Let’s look at two cases Jackson handled as a district court judge, her job for eight years until being elevated to the D.C. Court of Appeals last year. The cases are among the highest-profile to have reached her court. They also involve immigration law, an area I write on.
Make the Road New York v. McAleenan, our first case, involved a Trump administration notice applying “expedited removal” to aliens apprehended up to two years after illegally entering the country by land.
In a nutshell, expedited removal shortens the time between an inadmissible alien’s apprehension and removal, and otherwise makes it harder to stay in the country illegally.
By law, the Department of Homeland Security must apply expedited removal to certain inadmissible aliens arriving in the country.
DHS may designate other inadmissible aliens eligible for expedited removal — up to and including those covered by the notice.
Here’s the key statutory language. “Such designation,” reads the law, “shall be in the sole and unreviewable discretion of the Attorney General [or DHS Secretary under The Homeland Security Act] and may be modified at any time.”
Now a question for the reader — and feel free to don an imaginary judicial robe. Given DHS’s “sole and unreviewable” discretion, may a federal court interfere with the designation?
If you answered no, good work. You also may be more qualified to serve on the United States Supreme Court than Jackson — who blocked the designation. (READ MORE: Ketanji Brown Jackson’s Judicial Off-Roading)
“There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the Secretary’s independent judgment,” observed Appeals Court Judges Patricia Millett and Harry Edwards in their opinion reversing Jackson’s ruling.
Millett and Edwards are both liberals, incidentally. The panel’s best judge, Trump appointee Neomi Rao, agreed with her colleagues that the law prevents judicial meddling, but dissented on the grounds that the designation is among the class of decisions over which Congress has stripped federal courts of jurisdiction.
Jackson, Rao convincingly explained, made the threshold error of not dismissing the lawsuit for lack of jurisdiction.
In any case, according to Jackson, DHS didn’t “ask the right questions,” “look at all the facts,” and “evaluate, fully, the best course of action with respect to the expedited removal process.”
Jackson’s political grievances masquerade as legal concerns.
“Even if Congress has granted DHS broad discretion,” her opinion reads, “that grant does not necessarily carry with it the freedom to make the ultimate discretionary determination however the agency wants to.”
Yes, it does. Congress said “sole and unreviewable discretion,” not “sole and unreviewable discretion, subject to judicial approval.”
But DHS, Jackson complains, didn’t consider the “burdens,” “significant and consequential risks,” “potential serious implications,” “potential devastation,” etc., as to inadmissible aliens affected by expanding expedited removal.
Jackson’s political grievances masquerading as process concerns, recycled and rehashed throughout her tediously long opinion, underscore why Congress placed expedited removal designations within DHS’s sole and unreviewable discretion — namely, to prevent anti-immigration enforcement activist groups from getting an anti-immigration enforcement activist judge (like Jackson) to block such designations.
Resisting the conclusion that DHS’s discretion is unfettered, Jackson offered the example that DHS wouldn’t be permitted “to use a Ouija board” in expedited removal determinations.
If a Ouija board was used, a court still would have no say. Still, policy by Ouija board is preferable to this administration’s immigration policies, which have led to record illegal immigration numbers while enriching Mexican drug cartels and human smugglers.
Moreover, the expansion of expedited removal wrongly held illegal by Jackson was prompted by reasonable concerns, including, as the notice explains, removing an important incentive for illegal immigration — an inadmissible alien’s knowledge that he or she can avoid summary removal by making it into the interior of the U.S.
In Kiakombua v. Wolfe, our second case, Jackson ordered U.S. Citizenship and Immigration Services (USCIS) to stop using certain educational materials to train officers on whether aliens in expedited removal proceedings who seek asylum have a “credible fear” of persecution.
While perhaps not as clear-cut as the “sole and unreviewable” issue in Make the Road N.Y., Jackson’s superficial approach is on full display. Take her analysis regarding whether the Kiakombua plaintiffs had legal standing.
Here’s the background. In order to satisfy Article III’s “case or controversy” requirement, the Supreme Court requires that a plaintiff demonstrate, first, a “concrete and particularized injury,” second, a “causal connection” between the injury and alleged wrong, and third, a likelihood that the injury “will be redressed by a favorable decision.” (See, for example, Lujan v. Defenders of Wildlife)
Two of the five plaintiffs had no cognizable “injury.” Yes, an IUSCIS asylum officer determined that each lacked a “credible fear” of persecution, but their asylum claims had not been resolved.
Aliens determined to not have credible fear by the asylum officer (a screening process designed to weed out the most obviously meritless cases) can appeal to an immigration judge. Those found to have credible fear (by the asylum officer or an immigration judge’s reversal of the officer’s negative screening), are put into “full” removal hearings — where immigration judges fully vet asylum claims on their merits.
These plaintiffs were scheduled for full removal hearings in the future. There was no “injury.” Again, their asylum applications had not been adjudicated.
An immigration judge did uphold negative credible fear findings regarding the other plaintiffs, ordering their immediate removal.
But immigration judges, who are Department of Justice employees, review credible fear determinations de novo — independently, without deference to the decision of the asylum officers, who are USCIS employees. Immigration judges don’t even consult USCIS educational materials.
The second prong of standing, causation, wasn’t met. The negative fear determinations ultimately were due to an immigration judge’s independent evaluation — unconnected to the (supposedly) deficient training materials (known as a “lesson plan”).
But, reasoned Jackson, “a plaintiff who alleges a depravation of a procedural protection to which he is entitled never has to prove that if he had received the [proper] procedure the substantive result would have been altered,” quoting Sugar Cane Growers Co-op. of Florida v. Veneman.
In Sugar Cane Growers Co-op, (a D.C. Circuit decision), the Department of Agriculture announced its yearly sugar price support program without giving plaintiffs, cane sugar producers who contended that the program favored beet sugar producers, the opportunity to provide public comment as required by law.
As before, you be the judge. Is Sugar Cane Growers on point? Only if the Kiakombua plaintiffs were denied credible fear interviews. Not the case, obviously. Indeed, a better analogy would be if they were denied hearings before an immigration judge, the ultimate decider.
Moving on, Jackson’s opinion tries to hide behind Grace v. Barr, a case decided shortly before her Kiakombua ruling on whether plaintiffs survive the jurisdiction stripping provisions of 8 U.S.C. § 1252.
Section 1252 prohibits (among other things) judicial review of expedited removal orders. For purposes relevant here, it allows limited judicial review regarding whether “a written policy directive, written policy guideline, or written procedure” issued “to implement” the expedited removal statute is contrary to law.
In Grace, the D.C. Circuit held that Section 1252 didn’t bar a challenge to an attorney general policy memorandum on one aspect of asylum law affecting plaintiffs in that case.
In Kiakombua, Jackson wrote that “the lesson plan also qualifies as a “written policy directive, written policy guideline, or written procedure” implementing expedited removal — citing Grace as support.
But in Grace, in contrast to Kiakombua, the government never claimed that the materials being challenged didn’t constitute a “written policy directive,” “guideline,” or “procedure.” Indeed, the material in Grace was labeled a “policy memorandum.” All this was glossed over by Jackson.
Not only did the educational materials in Kiakombua not constitute a policy “directive,” “guideline,” or “procedure” (they merely summarized key statutes, cases, and regulations on credible fear), but Jackson also wrongly concluded that the materials misstated the law.
The truth is that the materials lacked the pro-asylum gloss preferred by activist groups — and Jackson.
There’s no space for a full review of the educational materials banished by Jackson, but one example typifies her approach.
The materials remind asylum officers that when alleged persecution stems from non-government entities, there must be some evidence (which can be met by the alien’s credible testimony) that internal relocation in the alien’s home country “is not reasonable.”
Jackson complained that this “bear[s] no relationship to the assessments that Congress has prescribed when credible fear determinations are made,” because the credible fear statute doesn’t mention it.
This defies logic. Credible fear means a “significant possibility” that the alien “could establish eligibility for asylum under section 1158.” Section 1158 is the asylum statute. Section 1158’s implementing regulations state that asylum should be denied where the claimant could avoid persecution by “relocating to another part of the applicant’s country,” or if stateless, their “last habitual residence.”
Essentially, Jackson held that asylum officers and immigration judges must find credible fear (i.e., a significant possibility that the alien would qualify for asylum) even in cases where asylum applicants could have relocated — and hence won’t qualify for asylum. Meet your next Supreme Court justice, America!
Her Kiakombua ruling likely would have been reversed, but Biden’s DOJ dropped the Trump administration’s pending appeal after her confirmation to the Court of Appeals.
While unfortunate, Biden’s decision to limit the pool of applicants to black women is totally consistent with his embrace of identity politics since taking office.
Still, other candidates meeting his pledge, such as Judge Michelle Childs, would have garnered significant Republican support.
Put me in the cynical camp here. The administration and congressional Democrats don’t care about Republican votes.
Their message will be that Republicans oppose Jackson, the pick demanded by the pack of court loonies who dominate the Democratic Party, because she is a black woman.
Appoint a liberal activist in robes to satisfy the party’s social justice bosses, then play the race card to energize the black vote for the midterms and beyond. That’s the strategy.
It’s unfortunate. For the Democratic party, it’s also business as usual.
Ken Sondik, an attorney in Zionsville, Indiana, can be reached at firstname.lastname@example.org