Red Courts, Blue Courts

Something remarkable happened on November 1:  President Biden nominated a judge to serve in the District of South Carolina.

To be sure, that doesn’t sound remarkable. Presidents nominating judges is ordinary.  Or at least, it has been. And in one sense, it still is. President Biden appointed roughly as many judges as his predecessors in his first two years in office. But President Biden is appointing district judges almost exclusively in blue states. As I show in my article in the Mississippi Law Journal, of his 68 district court appointments made by the end of December 2022, 50 were in blue states (74%), 12 in purple or swing states (18%), and only six in red states (9%).

The disparity is even more extreme with respect to President Biden’s nominations so far in 2023. Of his 45 pending district court nominations that weren’t confirmed at the end of the last Congress, 41 (91%) are in blue states, three (7%) in purple states, and only one (2%) in red states. So even if all of President Biden’s nominees had been confirmed during his first term, he would have appointed 87 judges (84%) in blue states, ten (10%) in purple states, and only six (6%) in red states. The problem isn’t that there aren’t vacancies in red and purple states; it is that President Biden is not nominating judges to fill those vacancies.

This is only the most extreme example of a disturbing phenomenon: the federal judiciary is increasingly fragmented into red courts and blue courts. President Biden is not alone in appointing judges in states in which his party has solid support, though his record in appointing judges to red states is the weakest. President Trump did the same, though not to the same extent. Of Trump’s 174 district court appointments, 110 were in red states (63%), 21 were in purple states (12%), and only 43 were in blue states (25%).

While one might suspect there has always been a political valence to judicial appointments, in fact this is a dramatic and recent change. It was much less true even a decade ago. The Obama administration appointed 268 district judges in total, including 130 judges in blue states (49%), 43 in purple states (16%), and 95 in red states (35%).  And the George W. Bush administration appointed 261 district judges in total, including 117 judges in red states (45%), 51 in purple states (20%), and 93 in blue states (36%). Both administrations saw large-scale political infighting over judgeships, but both had appointment records that were much closer to parity than did President Trump, and certainly than the Biden administration so far.

Another way to understand this change is by looking at the variance in the percentage points of nominees in states supporting the president’s party and those opposed to it. George W. Bush appointed 45% of judges in states aligned with his party and 36% in states opposed to his party, for a party affinity of +9 percentage points. For Obama, the affinity score is +14 (49% vs. 35%). For Trump, it is +36 (62% vs. 26%). And for Biden, it is a whopping +70 (79% vs. 9%).

The combined effect of this party-affinity bias by both Trump and Biden – who together have appointed 223 of the 606 active federal judges, more than one-third of the total – is that 62.5% of district judges in red states have been appointed by Republican presidents, compared with 48% of district judges in purple states, and only 30% of district judges in blue states. The overall disparity is likely to grow even more pronounced because each president in the last two decades has been more likely than his predecessor to appoint judges primarily in states that back him politically.

We are headed for a world in which we have not a single federal judiciary, but a system of red courts and blue courts that parallels our red-state, blue-state division.  This is bad for several reasons.

First, it may mean that federal judges, who have long stood as a bulwark against states passing unconstitutional laws, are more likely to go along with those laws.  Federal courts enforced integration orders in the south in the 1950s and 1960s because the judges there were willing to apply the law in the face of significant local hostility.  By contrast, courts that share the ideology of the states in which they sit may be more likely to do the locally and politically popular thing even if it isn’t consistent with the law. If anything, we might want judges who act as a counterweight to the trends of local politics, or – better still – judges with a variety of backgrounds and perspectives.  Unfortunately, the data suggests increasing polarization. Ranked by the Judicial Common Space (JSC) score – a well-respected measure of judicial ideology – Trump’s appellate judge picks were more extreme than any president in at least the last four decades.

Second, the increasing red-court, blue-court divide leads to sloppy decisions.  Judges that don’t have to worry about persuading colleagues, responding to a dissent, or risking reversal, as long as they do the thing the local in-group likes, feel less need to justify what they are doing. When they do offer justifications, the fact that there isn’t someone with a different view challenging their arguments leads to some remarkably shoddy logic. We have seen numerous examples of this effect in just the past few months:

  • A Trump-appointee in Florida, Judge Eileen Cannon, ignored numerous procedural and substantive rules to consistently decide in favor of Trump in his bizarre legal challenge to the government seizure of classified documents from Mar-a-Lago;
  • A panel of three Republican-appointed judges wrote an absurd opinion upholding Texas’s requirement that social media platforms must carry all content the Texas legislature approves of, reasoning that a private actor’s decision whether or not to host Nazi propaganda was “censorship,” and that the government’s demand that sites host certain types of speech didn’t implicate the first amendment;
  • A notorious Trump appointee in Amarillo, Texas, Judge Matthew Kacsmaryk, who has struck down dozens of Biden administration laws with little justification, granted a “preliminary” injunction against the FDA’s approval of mifepristone, an abortifacient, 23 years earlier. The opinion is expressly partisan and takes a number of positions that don’t pass the straight-face test, including holding that doctors who refuse to prescribe the abortion drug that their patients request have standing because they represent the interests of those patients, and there is no conflict between them.

The state-based and regional differences in judicial ideology also raise the stakes in the long-standing debate over nationwide injunctions – whether injunctions against the federal government bind it nationwide, only in a circuit or district, or only in the case before it.  The risk of nationwide injunctions is that one outlier judge ends up setting policy for the nation, at least temporarily. The division into red and blue courts increases that risk, because plaintiffs can more reliably find friendly judges in particular jurisdictions. Indeed, they may be able to file suit in divisions where they are guaranteed to get a particular judge or a group of judges friendly to them, particularly in Texas, which has many single-judge divisions, and the Western District of Louisiana, most of which is composed of divisions in which a single judge hears almost all the cases. And sure enough, there are well-known Trump judges in Texas and Louisiana who regularly grant nationwide injunctions striking down Biden administration policies. Conservative groups engage in exactly this type of judge-shopping, filing a suit where they are guaranteed to get a friendly judge.

Finally, and most importantly, the growing division into red courts and blue courts is corrosive to the perception of the rule of law. Even if it turned out to be the case that judges decided cases independently of the president who appointed them – and it doesn’t – the perception that politics influences outcomes is bad for the integrity of the judiciary. And it is likely to corrode both the rule of law and the public’s perception of it.

The fact that this change is of such recent vintage gives us some cause for hope that it can be changed. Even in what seemed like a politically charged era for judicial appointments – the first 15 years of this century – we weren’t divided into red and blue courts, and almost all district judges received unanimous or at least lopsided, bipartisan votes. So perhaps we can turn things around by the simple expedient of having presidents focus more attention on appointing judges in states that didn’t vote for them.

But it may be that we need to change Senate norms too. President Biden may be shying away from appointing judges in red states because of the strong historical norm that home-state senators get a quasi-veto (called a “blue slip”) over at least district court judge nominations. If a state has even one Republican Senator, they may simply not be willing to allow a vote on a Biden nominee.  And because all the votes today are so close, for most of the past three years they have depended on at least one judiciary committee Republican vote and generally one or two floor Republican votes. Losing a couple of Republican votes because the home state senators object might doom the nomination and will at the very least make it harder. And at the very least, the extra fight takes up time on the Senate floor, which is a precious commodity. We have seen that play out in the few cases in which President Biden nominated a district judge in a red state. Senator Cindy Hyde-Smith withheld a blue slip on a nominee in Mississippi, for example, because he did not share her anti-trans views. Because of these risks, even fear of a Republican Senator not returning a blue slip may be enough for President Biden to refrain from nominating someone for a red state vacancy.

The blue slip procedure is a problem in the modern, hyper-partisan world of judicial appointments. It’s not clear it was ever a good idea to give individual senators that much power over judges in their home state. But at least in the past it was mostly used to object to particular individuals, or perhaps as a delaying tactic, rather than as a way to prevent appointments from the opposite party altogether.

The Senate eliminated the filibuster for lower court judges in 2013 after Republicans began using it to stop Obama’s appellate court appointments. It would be straightforward to eliminate the blue slip procedure, particularly since it is a norm and not a formal rule. But the Democratic chair of the Senate Judiciary Committee, Senator Dick Durbin, has so far been unwilling to do so. Alternatively, the Senate could constrain the use of the rule, limiting how many times a particular Senator can put a hold on judicial candidates or how long that hold might delay a full Senate vote, or refusing to apply the rule to districts that have long sat vacant in declared “judicial emergencies.”

However we make it happen, the Biden administration – and the administrations that follow, Republican or Democratic – must make greater efforts to appoint judges in all the states, not just the ones that share their political views.  The future of our independent judiciary depends on it.

Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Program in Law, Science and Technology. He is also a Senior Fellow at the Stanford Institute for Economic Policy Research and is affiliated faculty in the Symbolic Systems program.

 

A Global View of U.S. Backsliding on Democracy and Reproductive Rights

This month, the United Nations Human Rights Committee concluded its review of the United States’ human rights record. Nine years had passed since the Committee’s last review of the U.S. With many urgent issues to address – including gun violence, excessive use of force by law enforcement, climate change, and Guantanamo – the Committee trained particular focus on the state of reproductive rights and democracy in the United States. The Committee’s alarm over the flood of restrictions on reproductive and bodily autonomy, alongside its deep concern over attacks on the right to vote, points to the deep connections between reproductive rights and democracy. Americans have a front row view of these connections in the wake of the Supreme Court majority’s decision in Dobbs to eliminate federal constitutional protections for abortion and leave the issue up to the political branches and the states. The global perspective offered by the UN review is a reminder, however, that regression on reproductive rights reinforces and supports erosion of democracy. These are mutually reinforcing trends. And the UN review underscores the urgency of safeguarding both.

The ICCPR review

In its review of U.S. compliance with the International Convention on Civil and Political Rights (ICCPR), which the United States ratified in 1992, the Committee of human rights experts noted deep concern with post-Dobbs state restrictions on abortion, the criminalization of health care providers and people seeking abortion care, and the disproportionate impact these measures have on people who are low-income, those living in rural areas, and those belonging to racial and ethnic minorities. The Human Rights Committee likewise raised concern regarding efforts to limit the right to vote, including gerrymandering and measures to restrict ballot access such as burdensome voter ID requirements, again noting the disproportionate impact these restrictions have on low-income voters, people with disabilities, and people of color. The Committee’s findings amplify the alarm sounded in 2022 by another expert committee, the UN Committee on the Elimination of Racial Discrimination, at the conclusion of its review of U.S. compliance with the Convention on the Elimination of All Forms of Racial Discrimination.

The UN Human Rights Committee’s 2023 conclusions and recommendations respond to concerns raised by members of civil society about the devastating impact of abortion bans and restrictions, and the overall chaos and confusion surrounding access to reproductive health care in the United States. Consistent with the rights to life, privacy, non-discrimination, and freedom from cruel and degrading treatment, the Committee urged the U.S. to “take all the necessary measures” at every level “to ensure that women and girls do not have to resort to unsafe abortions that may endanger their lives and health.” The Committee made specific recommendations to the U.S. to ensure “legal, effective, safe and confidential access to abortion . . . without discrimination, free of violence and coercion,” to end the criminalization of abortion, and to harmonize abortion law and policy with the World Health Organizations’ newly issued Abortion Care Guidelines. The Committee focused, too, on the need to ensure confidentiality and privacy of medical providers and patients, and urged the U.S. to remove restrictions on inter-state travel for abortion care and to guarantee and expand access to medication abortion. Alongside its focus on abortion, the Committee expressed deep concern over the rising crisis in maternal health in the United States and its impact on Black and Indigenous people, especially, and urged a redoubling of efforts to prevent maternal mortality and morbidity, including through the removal of restrictions on midwifery care in Black and Indigenous communities.

The Committee also responded to concerns raised by civil society regarding the recent flood of legislative initiatives and state practices restricting voting rights and political participation in the United States, and their particular impact on voting access for people of color. Consistent with the rights to equality and non-discrimination and the right to participate in public affairs, the Committee urged the United States to “eliminate excessive burdens on voters that could result in de facto disfranchisement,” ensure accessibility of polling places, and restore and enforce the Voting Rights Act. In addition, the Committee urged the drawing of non-partisan and non-discriminatory districts, investigation of harassment and attacks against election officials, reinstatement of voting rights for people with felony convictions, and fair regulation of campaign funding.

A global lens on democratic backsliding and reproductive rights

The Human Rights Committee’s recommendations highlight the ways in which the United States is out of step with both human rights norms and global trends. In the same year the United States ratified the ICCPR, the U.S. Supreme Court reaffirmed the federal constitutional right to abortion in Planned Parenthood v. Casey. Yet, three decades later, the United States is identified as a backsliding democracy, with an international body admonishing the U.S. to “ensure that all persons entitled to vote are able to exercise that right” and to guard against “unsafe abortions that may endanger” lives and health.

Today, the U.S. is an outlier internationally. Its retrenchment on reproductive rights occurs alongside the widely recognized global trend towards liberalization of abortion. In this, the United States stands in sharp contrast to other democracies. In recent years, nearly 60 countries have liberalized their laws on abortion. These include European countries such as Ireland, Northern Ireland, and San Marino, as well as Latin American countries such as Mexico, Argentina, Colombia, and Chile. The United States is one of only four countries to remove legal grounds for abortion in the past 30 years. The others are El Salvador, Poland, and Nicaragua.

In the voting arena, independent multinational election observers in recent years have felt compelled to reiterate the basic building blocks of democracy when offering post-election recommendations to the United States. Ensure the principle of “equality of the vote,” said observers from the Organization for Security and Co-operation in Europe. “Election administration should be able to work in an atmosphere free from threat and coercion,” they added. And recognizing the connection between women’s rights and democracy, they urged U.S. ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the international women’s rights treaty.

Attacks on democracy fuel attacks on reproductive rights

It is a distressing fact that restrictions on gender equality and reproductive rights accelerate in backsliding democracies. Indeed, the rise in right wing populism and authoritarianism has fueled regression on women’s rights in countries such as Poland and Hungary. Recent democratic backsliding in the U.S. follows in this path, building on the U.S. history of systemic discrimination against Black voters, historic denial of women’s citizenship rights, and long-standing voter suppression efforts to drive regression on reproductive rights, including abortion rights.

Indeed, as Laleh Ispahani recently noted, anti-democracy and anti-abortion efforts very often go “hand in hand.” State gerrymandering results in state legislatures that are not representative of their constituencies, leading to enactment of strict abortion laws despite popular support for abortion access. Texas — home to some of the most restrictive abortion laws in the country as well as the most restrictive voting laws — is exemplary as a laboratory for efforts to curtail both democratic participation and reproductive rights through interlocking policies that further regression of both. Reproductive justice advocates have long made this connection through their advocacy for voting rights and political participation.

Attacks on the First Amendment, a core right in American democracy, can also limit reproductive freedom. Proposed legislation last year in South Carolina, based on a model law devised by the National Right to Life Committee, would criminalize a wide swath of abortion-related speech, including providing individuals with information about abortion or referral to an abortion provider. The University of Idaho’s general counsel warned university health center employees against promoting, referring, or offering abortion care, and cautioned classroom teachers to remain neutral on the topic of abortion, lest they be in violation of the state’s ban on public funding for abortion. These curtailments on speech and information likewise undermine reproductive rights.

Attacks on democracy come in the form of restrictions on state courts, as well. These include restrictions on judicial authority and efforts to undermine state court judges’ independence.  For example, the baseless threats to impeach a duly elected Supreme Court justice in Wisconsin sent a message to state court jurists around the country as their courts address reproductive rights issues.

Attacks on reproductive rights reinforce democratic backsliding

It is no coincidence that restrictions on reproductive rights, including abortion rights, are high on the agenda of authoritarian regimes, since these restrictions reinforce democratic backsliding. Abortion restrictions undermine women’s autonomy, citizenship, and rights to equality and non-discrimination, along with the right to full political participation. Reproductive and bodily autonomy is a necessary component of full citizenship and a fully functioning democracy; all people, including those with the capacity for pregnancy, must be able to exercise control over their bodies in order to participate fully. Scholars such as Peggy Davis have made clear the ways in which the full personhood promised by the 14th Amendment, especially for Black women, requires the right to reproductive and bodily autonomy.

Within the United States, this sets up the potential for a vicious downward spiral: anti-democratic efforts lead to further erosion of reproductive rights, and regression on abortion rights results in further democratic backsliding. Yet in many states, voters are fighting back, and using direct democracy as a powerful defense against further erosion of reproductive rights.

Ohio Ballot Initiative 1, the successful statewide effort to protect abortion access through constitutional amendment, is the most recent example of this dynamic, illustrating the power of democracy in the fight for reproductive rights. Across the country, state ballot initiatives have been remarkably successful in protecting abortion access post-Dobbs. In November 2023, Ohio voters decisively endorsed the addition of abortion protections to their state constitution to override the state’s strict six-week abortion ban. This was despite attempts by some state legislators to thwart the will of the people by first proposing to change the rules midstream to require a supermajority for passage, and then misleading voters on the content of the amendment. An increasing number of states have similarly sought to make it harder to change laws or amend state constitutions through direct democracy efforts, threatened by the post-Dobbs success of ballot initiatives – and these efforts are ongoing in Ohio. The results in Ohio show that democracy is a powerful tool in the fight for reproductive freedom. Yet, despite the resounding message that the state’s voters support abortion access, legislators in Ohio are scheming to prevent the amendment from taking effect. As policymakers proceed down this path, their blindered effort to restrict reproductive rights drags democracy down with it.

Conclusion

The world is watching what is unfolding in the United States with respect to democracy and reproductive rights. And the UN Human Rights Committee’s recommendations make clear what is necessary to reverse these interlocking trends. Protecting abortion requires protecting democracy, and protecting democracy requires protecting reproductive rights, including abortion. Advocates are smartly developing integrated strategies that recognize these interrelationships. Funders have been called to recognize this need and to support integrated approaches. International human rights bodies regularly reiterate the indivisibility of human rights. The current, virulent attacks on democratic values and abortion in the U.S. are a clear call to defend both, together.

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Martha F. Davis is University Distinguished Professor at Northeastern University School of Law, where she serves as faculty co-director of the Program on Human Rights and the Global Economy and faculty director of the NuLawLab. She is also a fellow at the Carr Center for Human Rights at the Harvard Kennedy School.

 

 

 

Risa E. Kaufman is the director of human rights at the Overbrook Foundation, where she leads a portfolio of grantmaking focused on democracy, reproductive rights, and support for human rights defenders in Latin America. She is also an adjunct professor of law at NYU School of Law, where she teaches a seminar on U.S. human rights advocacy.

Women and People of Color Deserve Better from the Second Amendment

Today, the Supreme Court heard oral arguments in U.S. v. Rahimi—a case which will determine the fate of a federal law which keeps firearms out of the hands of domestic abusers. While some predict that the Court will find a way to uphold the law, no matter how the case is resolved, women and people of color have already lost.

This is because last year, in a landmark gun safety ruling, the Supreme Court froze the terms of the debate somewhere between 1789 and 1868. According to the Court’s tortured ruling in New York State Rifle and Pistol Association v. Bruen, if a certain type of gun regulation didn’t exist in this early period of U.S. history—an era where Black people were considered property in many states and married women had no legal identity independent of their husbands—it is presumptively unconstitutional.

It bears emphasizing that the Founding Fathers’ vision of the Second Amendment explicitly excluded women and people of color. In 1791, the nation ratified the Second Amendment, which linked the right to bear arms to a “well-regulated militia.” The following year, Congress defined the militia to consist of “white male citizen[s].”

Against the racist, sexist backdrop of history, advocates on both sides of Rahimi have advanced problematic arguments. Rahimi’s legal team argues that the statute is unconstitutional because legislatures in the 1800s did not pass laws to disarm domestic abusers—ignoring the fact that until 1850, only one state had passed a law against domestic violence. Meanwhile, in defense of the law, the U.S. government notes past state governments’ willingness to disarm various classes of individuals who were not deemed “law-abiding, responsible citizens,” including “tramps” and “vagrants.” This argument omits the long history of states using facially-neutral, discriminatorily applied vagrancy statutes to target Black Americans after the Civil War, and to the present.

Both arguments—encouraged by the current Court’s extremist ideology—threaten to exacerbate disparities in who is able to exercise their right to bear arms and increase the overall level of gun violence in the present. Today, white men are more than twice as likely as women or people of color to own guns and are three times more likely than women of color to own a gun. Nevertheless, regulations criminalizing gun ownership are overwhelmingly applied to Black and Hispanic people. According to analysis in support of Rahimi, although Black people make up only 18% of New York’s population, they account for 78% of the state’s gun possession cases.

When Black people interact with the police, the mere inference of the presence of a gun can prove fatal, as in the case of Philando Castile, Alton Sterling and so many others. Meanwhile, white armed suspects are frequently captured alive, including the perpetrators of the Emanuel AME Church mass shooting in 2015, the Kenosha, Washington shooting in 2020, and the Atlanta spa mass shooting in 2021. All too frequently, armed white people are treated as “law-abiding citizens,” while (supposedly) armed people of color are presumed dangerous.

At the same time, gun proliferation has hurt women and communities of color. Latinos and Black people respectively are 2 and 12 times are twice as likely as white people to die of gun violence. Nearly 1 million American women have been shot by an intimate partner and Indigenous and Black women are respectively 2 and 3 times as likely as white women to be shot and killed by a partner. Although women and people of color are frequently denied the right to bear arms, they disproportionately bear the burden of America’s gun violence epidemic.

The reality is that the rollback of gun control has hurt everyone. Since 2008, when the Supreme Court first began to overturn gun safety regulations with District of Columbia v. Heller, the annual rate of mass shootings has nearly tripled, from 253 to more than 645, and the annual school shootings has increased tenfold, with more than 300 incidents in 2022. By requiring lawmakers to solve 21st century problems with 18th century tools, the Supreme Court has fueled inequality and exacted a heavy toll on human life.

Instead of parsing who among the population is worthy of gun ownership, or adopting a reckless “more is more” approach, we should work to decrease the overall availability of guns in our society. We might focus on removing categories of weapons from public use and strengthening training and licensing requirements. This approach has been widely adopted by our common law cousins, including Britain, Canada, and Australia, and as a result those countries enjoy much lower levels of gun violence than seen in the United States.

An approach based on universal, rather than categorical restrictions would also find surer footing in the constitutional system developed by the Second Founders after the Civil War. Unlike the generation of 1791, the Second Founders were deeply concerned (although imperfectly), with racial and gender equality, and multiracial democracy. The experience of the war would have laid to rest the extreme idea that the Second Amendment confers a right to armed insurrection. It also underlined the importance of equal protection, and that, to the extent lethal weapons are available, the right to access them must be distributed equitably. Most importantly, having seen the near demise of the constitutional system envisioned by the Founding Fathers, they understood that government needs flexibility to adapt and confront modern challenges.

In the short term, a narrow ruling in favor of the government may help to mitigate the damage done by Heller and Bruen. In the long term, only by embracing universal approaches can we secure a future that is both safe and equitable.

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Taonga Leslie is the Director of Policy and Program for Racial Justice at ACS.

 

Attorneys Failing Us as to the Rule of Law: ‘The Big Lie’

Attorneys take an oath, with some variation, to “. . . support [protect, or defend] the constitution of the United States and the constitution of (their home state).” It is an oath very similar to the one taken by our federal officials, including the President of the United States and members of Congress. It is an affirmative oath which calls one to action and places an affirmative duty on the oath-taker. As the oath makes clear, our Constitution is the very bedrock of our rule of law and worth protecting.

In a recent article in The Atlantic, Professor Laurence Tribe and Justice J. Michael Luttig make the case that the Constitution prohibits Trump from ever being president again, based on Trump’s efforts to overturn the 2020 election – the ‘Big Lie’ that Trump won the 2020 election when in fact he did not – which resulted in the January 6th attack on our Capitol. To reach this conclusion they point out that Section 3 of the post-Civil War Fourteenth Amendment “automatically excludes from future office and position of power in the United States government, [as well as state and local governments], any person who has taken an oath to support and defend our Constitution.” This would include our aforementioned public officials as well as attorneys. Tribe and Luttig point out conservative legal scholars, Professors William Baude and Michael Stokes Paulsen in The Sweep and Force of Section Three, provide evidence that supports this understanding of the Fourteenth Amendment making this a non-partisan issue.

Since the attack on our Capitol, political leaders, many of whom are lawyers, continue to spread and amplify the ‘Big Lie’ not as valid political dissent against some government policy, which would be protected by ‘freedom of speech,’ but as cover for those who engaged in criminal acts during the January 6th insurrection and as an outright attack on the fundamental bases of our constitutional government whether it is the peaceful transfer of power or the “lawful outcome of a presidential election.”

As Baude and Paulsen point out, “it is no defense that an individual might claim that his or her conduct does not constitute having engaged in or supported ‘insurrection’ or ‘rebellion’ because . . . Trump in fact won the election[.] The problem is that the premise is simply false. Decisionmakers can and should act on the well settled factual understanding that Joe Biden won, and Donald Trump lost, the election of 2020.”

The public record is clear. There are political leaders who are pushing lies which attack the very core of our Constitutional Government. “All who are committed to the Constitution should take note and say so,” as Baude and Paulsen urge.

Indeed, the legal profession, all Americans really, should pay heed to the corrosive effects of the actions and words leading up to January 6th and since, which destabilize not only our democracy but our government by people who swore to “protect the Constitution.” What is worse, these same people have moved from baselessly claiming an election was stolen to now attacking the justice system which is charged with bringing them to justice with no basis in fact or evidence to do so.

Many Americans do not know that attorneys are self-regulated through individual state disciplinary commissions. If an attorney breaks one of numerous ethical rules, they can be censured or suspended or disbarred by other attorneys. While there already is scholarly debate and work on lawyer lies and political speech, the attorney’s duty to democracy, and the attorney’s role in the subversion and protection of the Constitution, one need not look at ethical rules when we have the Constitution, the attorney’s oath of office, and the general character and fitness to practice law to consider. If attorneys, these politicians appear to lack the “character and fitness” to be representatives of the profession they are a part of as their conduct goes against the very oath to support, defend, and protect the Constitution. Rather than spreading the ‘Big Lie’ or helping spread the ‘Big Lie,’ or silently standing by while others spread the ‘Big Lie,’ attorneys should be correcting the record every chance they get. Otherwise, those ‘Big Lie’ attorneys prop up the ‘Big Lie’ simply by their societal station of being an attorney.

As Baude and Stokes note, Lincoln once said, a “man who stands by and says nothing, when the peril of his government is discussed, cannot be misunderstood. If not hindered, he is sure to help the enemy.”

To be blunt, it's time we attorneys as a profession stop burying our heads in the sand. This is not a case of a politician embellishing or characterizing another politician as “soft on crime” or “in the pocket of special interest,” or a case of ordinary political dissent. It is an extraordinary direct attack on our democracy through lies. Attorneys who violate their oaths should be held to account professionally whether censured, suspended, or outright disbarred. The legal and political processes will sort out whether politician lawyers should hold political office. However, we attorneys should do everything we can to protect the integrity of our profession and the very foundation of our Constitutional government.

Jim Saranteas is a practicing attorney with over twenty years of experience at the trial and appellate levels in civil litigation. His accomplishments include successful arguments and decisions before, among others, the Illinois Supreme Court. In 2012, the Loyola University Chicago School of Law’s Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. This year, Saranteas is assisting Duke Law’s Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.

 

Beyond Crisis Narratives: Solutions at the Border and Beyond

Early this year, I wrote about the urgent need for the Biden administration to confront its failures—and those of Republican-led states—on immigration policy. For months, Texas, Arizona, and even Florida had been busing and flying newcomers from the border to New York, Washington, D.C., and Chicago. In turn, receiving states and localities had already begun screaming calamity. And once more, newly arrived migrants had become political pawns: the federal government pointed to them to urge congressional reform; Republican-led states continued to call for a wholesale border closure; and Democrat-led localities pressed the need for more federal dollars.

Sadly, the spectacle has only intensified in recent months, to the detriment of our new neighbors and friends. Mayor Eric Adams has taken a page out of extremists’ playbooks to caution that newly arrived migrants will “destroy New York City,” and Illinois Governor J.B. Pritzker called the situation at the border “untenable” for Illinois while calling for more federal investments.

Those of us who live and work at the border know a lot about the “yes and” approach. Mayor Adams and Governor Pritzker are right that receiving communities need more federal dollars and other interventions like Temporary Protected Status designations. After all, the federal government is equipped with tools to respond to fluctuating needs at the border and beyond. And, in the absence of a whole-of-government approach and investment, localities need to govern by investing in humane reception and welcoming efforts in partnership with trusted nongovernmental organizations.

In San Diego, we already have a glimpse of what works. What was once an ad-hoc rapid response effort by local groups has become an exemplary infrastructure of local nongovernmental organizations, state government, and health partners that models how to receive newcomers with compassion. The San Diego Rapid Response Network Migrant Shelter provides humane respite sheltering for people released from border custody before they travel on to meet their loved ones throughout the country. Even in recent weeks, when the number of individuals processed and released has far exceeded existing shelter capacity, in part due to the scaling back of state resources, local groups have coalesced to welcome people in as dignified a manner as possible, while also continuing to call for meaningful investments from local government. The same is true in non-border cities too. In Los Angeles, the LA Welcome Collective has turned Texas Governor Abbot’s crisis narrative on its head by pooling local government and nongovernmental organizations’ resources to humanely receive some of the very buses Texas routinely sends in an effort to foment chaos in Los Angeles.

Beyond addressing the immediate humanitarian needs of newcomers at the border, broader solutions might seem elusive, as many elected officials will have us believe. But, once more, we already know what works.

Many who have consumed misleading narratives do not know that earlier this year, the Biden Administration implemented a program with the power to chip away at them. The Parole Pathways for people from Cuba, Haiti, Nicaragua, and Venezuela (CHNV Pathways), announced and implemented in January 2023, creates a safe pathway for up to 30,000 people per month from those four countries to seek advance permission to come the United States for up to two years. During that period, they are eligible for employment authorization. The program is modeled after Uniting for Ukraine, which created a similar (though numerically-uncapped) system for people fleeing Ukraine in the wake of Russia’s invasion.

In order to apply to the CHNV Pathways, individuals must have sworn financial sponsors in the United States and meet other eligibility requirements. They have drastically reduced the number of people from the included countries making the dangerous trek to the southern border, and it’s no wonder why: the CHNV Pathways have created powerful incentives for people to use them, and disincentives for other more risky options. At the same time, across the United States, families, churches, and business are eagerly raising their hands to sponsor people through the program. The CHNV Pathways demonstrate the will of communities across the country to welcome newcomers, which sits in stark contrast to the fear mongering advanced by some politicians charged with leading them.

But the CHNV Pathways are now in the crosshairs of one of the chief peddlers of crisis narratives: the state of Texas.  In a pending lawsuit, Texas and 20 other Republican-led states are seeking to block the CHNV Pathways altogether, and thereby block one of the few programs that, by nearly all measures, works. Together with attorneys from Justice Action Center and RAICES, I represent seven courageous program sponsors who embody its immense benefits and are fighting back against Texas’s attempt to end the program for the whole country. But they remain in jeopardy due to Texas’s lawsuit. This summer, we went to trial in the case, Texas v. DHS, No. 6-23-cv-7, and are awaiting a decision that will determine the fate of at least 1.5 million people waiting for their opportunity to sponsor their global neighbors.

The success of the CHNV Pathways—and the perils of ending them—are reminders that so long as instability exists abroad, no policies, no matter how punitive, will keep people from coming to our doorstep in search of safety, stability, and family reunification. What is within our control is what the process will look like. Do we want safe and systematic pathways to the interior of the country, or dangerous treks, confusing apps, and harsh penalties at the border? Respite sheltering, travel coordination, and work permits to stabilize newcomers; or rhetoric that vilifies and further marginalizes people who need a helping hand to get on their feet?

The more states/localities advance crisis narratives instead of investing in solutions, the easier we make it for Texas et al. to hold good immigration and border policy hostage for the whole country. Border communities—and other communities across the country—know what it means to celebrate newcomers while calling for more permanent investments. It’s past time for leaders on both sides of the aisle to take note.

Monika Y. Langarica is a senior staff attorney with the Center for the Immigration Law and Policy at the UCLA School of Law where she focuses on litigation, policy advocacy, and strategic communications related to asylum and border policy.

 

All In: Latinx/a/o Families & the Battle for Educational Opportunity

Eight-year-old Sylvia Mendez, the daughter of plaintiffs Gonzalo Méndez and Felicitas Mendez. Their California case Mendez v. Westminster overturned racial segregation in education in California and set a precedent for the eventual Brown v. Board of Education case. (via Wikimedia Commons.)

From time immemorial, our nation has struggled to fully overcome its horrid historical treatment of people of color – a history that is rife with violence, subjugation, inequitable opportunity, and denial of the ability to fully participate in our multiracial democracy. Despite the past and ongoing struggles, the fight for equitable opportunities and treatment continues and Latinx communities have often been at the forefront. This is especially pronounced in education, where Latino families have challenged the segregation of students and more recently have helped defend affirmative action in higher education and diversity admissions in K-12.

Mendez v. Westminster School District is one of the more well-known, earlier education cases involving Latino families challenging school segregation. Gonzalo Mendez and four other parents filed a class action challenging the segregation of children based on their “Mexican or Latin ancestry” in four school California school districts. The districts, in part, claimed that the segregation was necessary because the students did not know English. The evidence showed otherwise. In a precursor decision to Brown v. Board’s reversal of Plessy v. Ferguson, the federal district court held that the segregation caused feelings of inferiority upon the students and enjoined the segregation.

But well before Mendez, Latino families were fighting segregated schooling. Among other places, families in Alamosa, Colorado, Lemon Grove, California, and Del Rio, Texas, filed lawsuits challenging assignment of their children to “Mexican schools.” Similar to the defendants in Mendez, many of the schools attempted to use the children’s English proficiency as a proxy for the segregation. The Alamosa case, Maestas v. Shone, et al., was perhaps the first successful case. There, the state district court received evidence of the impact of the segregation on the children and the children testified in English to demonstrate their English proficiency. Following trial in 1914, the judge found the school board in violation of a state law prohibiting racial discrimination in schools, holding “In the opinion of the court … the only way to destroy this feeling of discontent and bitterness. . . . is to allow all children so prepared, to attend the school nearest them.”

More recently, Latinx students have been co-leading the national defense of racial diversity in both higher education and K-12. Latinx students participated as intervenors and amici in both the UNC and Harvard affirmative action cases reaching the Supreme Court. Represented by the Lawyers’ Committee for Civil Rights Law, Latinx, Black and Asian American students testified in both cases about the challenges they faced in high school, where they often had to fight to be placed in advanced courses. They also testified about the social and academic benefits of being educated in more diverse settings. Although the Supreme Court rejected Harvard’s and UNC’s affirmative action programs, the critical testimony of Latinx students and their peers on the importance of race and ethnicity in shaping their experiences may have influenced Chief Justice Roberts’ opinion in holding that students may continue to lift up, and have considered, their racial experiences in their applications.

In K-12 schools, Latino families and organizations have banded together with Black and Asian American groups to defend diversity admissions programs at specialty high schools in several communities including Fairfax, Boston, and Montgomery County, Maryland. The diversity admissions programs followed examinations by the respective school districts of prior policies that were largely based on unvalidated admissions tests and fees and were leading to the exclusion of Black, Latinx, English learner, and low-income students. To make their schools more inclusive, the districts revised their admissions policies to de-emphasize or eliminate standardized tests, and substituted other, more effective race-neutral policies without considering the race of any applicant. The opposition claims that the districts revised their admissions policies to exclude Asian American students under the Equal Protection Clause, even though Asian American students remain the highest enrolled student population in the schools compared to their overall population. Essentially, the plaintiffs in these cases argue that school districts are prohibited from making changes to existing policies if they have merely considered racial demographics as part of their analysis—even though race is not a factor in admissions decisions.

The Fairfax case, Coalition for TJ v. Fairfax County Public Schools, is pending certiorari before the Supreme Court in a petition filed by the plaintiff, while the other cases are in the federal courts of appeals. To date, none of these challenges has been successful.

These are only a handful of the many impact cases and movements where Latinx community has played a key role. From Rodriguez v. San Antonio I.S.D. to Plyer v. Doe, from Martinez v. New Mexico to Cruz-Guzman v. Minnesota, and so many others, Latinx families and advocates continue to serve as a powerful presence and ally in the pursuit of racial and ethnic justice in education.

David Hinojosa is the Director of Education Opportunities Project at the Lawyers’ Committee for Civil Rights Under Law, where he spearheads the organization’s systemic racial justice work in guaranteeing that historically marginalized students of color receive equal and equitable educational opportunities in public schools and institutions of higher education.