Part 2 of 2.
Just days before she died, Justice Ruth Bader Ginsburg said to her granddaughter that “[her] most fervent wish is that I will not be replaced until a new President is installed.”[1] Despite her characteristic fervency, it appears that her dying wish will not be granted.
As the country mourned Justice Ginsburg’s death, President Donald Trump announced his intention to nominate her replacement to the Supreme Court. Senate Majority Leader Mitch McConnell stated that the Senate will urgently “vote on the nomination this year.”[2] Democrats, facing a 54-46 Republican majority in the Senate, appear powerless to stop this eventuality.
For the first time since the 1950’s, Conservatives are poised to assert an unnassailable 6-3 majority on the Court.[3] Invariably, this will shape the future of American jurisprudence. Indeed, it may dictate the outcome of the 2020 Presidential election.
But how will this impact immigration policy? Immigrant advocates fear that the vacancy will be filled by a neo-Conservative Justice who shares Trump’s regressive stance towards immigration. To better understand the potential impact on immigration matters, we must scrutinize the individuals who have been named as potential replacements for Justice Ginsburg’s seat.
President Trump published a list of potential nominees–all with considerable conservative bona-fides–on September 9, 2020.[4] Recently, it was reported by TIME that this list has been narrowed to 5 women.[5] Two female jurists, Justice Amy Barrett from the 7th Circuit Court of Appeals, and Justice Barbara Lagoa, from the 11th Circuit Court of Appeals, have emerged as frontrunners for the appointment.
Both Judges have ruled on immigration matters while serving on their respective Circuit Courts of Appeals. Their decisions, writ large, exhibit a severe lack of empathy towards immigrant communities, and grant administration officials unfettered power to dictate immigration policy.
Justice Barrett was appointed to the 7th Circuit Court of Appeals on May 8, 2017. Her appointment by President Trump was approved by the Senate by a vote of 55 to 43. Judge Barrett is known for her strict Catholicism, and conservative stance on social issues.[6] In immigration matters, she has consistently held that Courts should not exercise judicial oversight over executive actions. In June 2020, in the Cook County v. Wolf case, Judge Barrett voiced her approval of the Trump Administration’s public charge rule. Writing in dissent, she condemned the decision striking down public charge, and maintained that litigation was “not a vehicle for resolving policy disputes” over executive matters.[7] In Yafai v. Pompeo, Judge Barrett issued the majority opinion of a three-judge panel.[8] In her opinion, Judge Barrett relied on the dubious doctrine known as “consular nonreviewability,” which precludes Courts from reviewing the constitutionality of the actions of consular officials. The decision denied the wife of a U.S. citizen the ability to challenge a consular denial of her visa application, based on allegations of human smuggling. Both of these decisions indicate that Judge Barrett, if appointed, would grant deference to the Trump administration’s immigration policies, no matter how invidious or unconstitutional.
Justice Lagoa, the daughter of Cuban refugees, joined the 11th Circuit Court of Appeals in 2019 . A Trump-appointee, she was confirmed by the Senate after a relatively non-contentious 80-15 vote. In August 2020, she joined in an en banc ruling which curtailed judicial oversight of administrative actions. This decision, Patel v. United States Attorney General, held that Courts of Appeals lack jurisdiction to review a BIA decision denying an employment-immigration petition because of an error made on application form.[9] According to the Alliance for Justice, this “sweeping reinterpretation of the longstanding presumption in favor of judicial review of administrative actions grants immigration officials an extraordinary degree of unchecked authority.”[10]
This precedent, of course, gives the Trump administration wide latitude to further its attacks on immigrant communities, and hamstrings any potential judicial oversight. She has not ruled on any other immigration cases. Despite the lack of evidence revealing her intimate thoughts on the matter, immigrant advocates fear that she will remain in lockstep with Conservative dogma, and allow for continued incursions on the rights of immigrants.
All told, this death of Justice Ginsburg and subsequent nomination of a Conservative jurist will shift the Supreme Court to the right on all issues, including immigration. It will further erode the Court’s capacity to negate the unlawful and racist immigration policies of the Trump administration. Moreover, it could spell the end of DACA, TPS, and other Obama-era immigration programs, which are currently being adjudicated in federal court after repeated challenges from the Trump Administration. Make no mistake: this judicial appointment will harm immigrant communities.
President Trump has indicated that he will announce his nomination over the weekend. Check back on the blog next week for further analysis on his announcement.
By Jonah A. Giese, PNCLO
[1] See: https://www.npr.org/sections/death-of-ruth-bader-ginsburg/2020/09/19/914841360/justices-remember-ruth-bader-ginsburg-a-jurist-of-historic-stature
[2] See: https://www.npr.org/sections/death-of-ruth-bader-ginsburg/2020/09/21/915383957/mcconnell-reiterates-pledge-to-vote-on-trumps-supreme-court-nominee-this-year
[3] See: https://www.washingtonpost.com/politics/2020/09/22/if-trump-appoints-third-justice-supreme-court-would-be-most-conservative-its-been-since-1950/
[4] See: https://www.whitehouse.gov/briefings-statements/remarks-president-trump-judicial-appointments/
[5] See: https://time.com/5891199/donald-trump-supreme-court-nominee-barrett-lagoa/
[6] See: https://www.scotusblog.com/2020/09/profile-of-a-potential-nominee-amy-coney-barrett/
[7] See: https://casetext.com/case/cook-cnty-v-wolf-1?
[8] See: https://casetext.com/case/yafai-v-pompeo?
[9]See: https://media.ca11.uscourts.gov/opinions/pub/files/201710636.enb.pdf
[10] See: https://www.afj.org/nominee/barbara-lagoa/