Living in the Machinery of Death

Being a clerk on a United States Court of Appeals was one of the truly great honors of my life. It was a fantastic experience, which included the chance to have a direct hand in the development of American law, to occupy a front-row seat to observe how the legal sausage is mad, and to work side-by-side with some exceptional attorneys and for a federal judge who was a fantastic friend and mentor.

But I've also remarked that, during the tenure of my clerkship, I often felt as if I was "ruining far more lives than I was validating." One arena of law which provoked that feeling was criminal law, where truly obscene oversentencing was a daily occurrence. Another area was immigration.

By the time an immigration case reaches the United States Court of Appeals for the Eighth Circuit, the median adjective describing the appealing immigrant is probably "doomed". This is due to a confluence of factors -- the laws on the books are immigrant-unfriendly, the immigration judges are often immigrant-unfriendly, and the standard of review for immigration claims at this stage is exceptionally immigrant-unfriendly. What that meant in practice was that, over and over again, I found myself reading files of people who insisted that they'd be hacked to death if they were deported back to Central America, then assisting in perfunctory one paragraph orders denying their appeal.

The risk (of being hacked to death) wasn't made up. I was generally quite persuaded that they were at serious risk of violent attack if they were returned to their home countries. But, as I said, the law is quite unfriendly, and since the persecution was rarely the result of direct governmental animosity or membership in a cohesive social group, there was usually nothing to be done. On the rare occasions where there seemed to be a glimmer of hope, I tried my best -- and most of those cases I was unsuccessful. But even the cases where there was even a implausible shot were few and far between. For the most part, the legal rulings were straight-forward -- hence why they could be expressed in perfunctory, single paragraph orders.

The law is straight-forward and it is clear. That does not change the reality of the situation. It is fair to say that the true villains here are the politicians who write and the people who demand laws which regularly enable such horrible outcomes. Fine. But the fact is I was a gear in a machinery of death, one that destroyed families and ruined lives. In terms of how much culpability you want to assign to me, personally, or other agents of the federal judiciary, legal formalism is a fine consideration to take account of. But appealing to it to deny the nature of the machine -- not to say "it's not my fault" but to say "that's not what was happening" -- is a psychological numbing agent. We run to it because it's terrible to have to face up to the reality of the situation.

The Austin American-Statesman reports on a recently deported immigrant -- snatched outside of a courthouse where he was facing a few minor misdemeanors -- who was just found murdered back in his native Mexico. Murdered, just as he told a federal court he would be in a futile effort to stave off his deportation.

Juan Coronilla-Guerrero had a criminal background. Not a serious one, but not a spotless one either. In this, he is little different from many Americans who have a spot or two in their past. Which itself raises the DACA question posited by, among others, my friend Joel Sati. DACA is for perfect immigrants -- those with not a single blemish on their record, those who perfectly fit a respectability narrative. Of course, it's understandable that, in unfavorable conditions, you latch onto the best stories you can. It's no mystery why DACA or the Dream Acts are framed the way they are.

But Juan Coronilla-Guerrero was not a murderer, or a rapist, or a child abuser. More to the point, he did not deserve to die. If or when DACA is passed, or a Dream Act, or some other comparable piece of immigration reform make it through Congress, it will undoubtedly exclude many, many Juan Coronilla-Guerreros. Not perfect people, but not bad people either. And despite the fact that they aren't hardened criminals, or "bad hombres", or incurable monsters, they'll continue to be deported, in circumstances where the results are entirely predictable -- ruined lives as best, death and maiming at worst.

We should still pass a DACA bill. We should do what we can, in the imperfect world we live in, bounded by the terrible political constraints that bind us.

It will remain a machinery of death. I'm not about casting blame; feel guilty or innocent at your own discretion. But don't deny the nature of the machine.

Re-Recognizing Racism: The Case of Tucson's Mexican-American Studies Litigation

A federal court invalidated an attempt by the state of Arizona to shut down a Mexican-American Studies curriculum in Tucson high schools, concluding that it was motivated by racial animus. The opinion is here, and it is just brutal on the primary architects of the law and its enforcement: Tom Horne and John Huppenthal.

What's striking about this opinion is that it doesn't flinch from the ascription of a racist motive. The program in question improved educational outcomes and was favorably reviewed in an audit ordered by the very officials whose avowed agenda was to destroy the department. Reviewing statements and practices by the major players behind the bill, the court's opinion concludes in no uncertain terms that the reason this law was passed and applied against Tucson's Mexican-American Studies program was because of bias against Mexican-Americans.

I strongly suspect that the willingness to make that determination is impacted by our current political climate. For all the whining that conservatives have engaged in about always being called a racist every which way, for the most part when it comes to official organs of government that had pretty much fallen off the table. There was an unspoken agreement that the "racism" charge was just too, well, mean to form the basis of high-level normative discourse.

And so, even a few years ago, for a federal judge to accuse a high-ranking state official of being motivated by racism would have been virtually unthinkable.  Courts dealing with racial discrimination suits would bend over backwards to couch their judgments in ways that would not be read as simply concluding that the defendants were being bigoted. Unfair, maybe; inconsistent, perhaps; unlawful, occasionally -- but not the dreaded "r" word. It wasn't seen as plausible that someone of prominence and prestige could be so crass as to be racist.

What's different now? One change is that conservatives on the Supreme Court have diced up our constitutional protections against racial discrimination such that only conscious, intentional discrimination qualifies. So judges who made have in past years relied on face-saving alternative rationales for invalidating discriminatory policies now have no choice but to say, flat-out, "this was done because of racial bias."

But I also think there's a greater psychological willingness to draw the inference of discrimination. The rise of Donald Trump demonstrated that explicit racial animus remained a live force in American politics, one that had a significant presence even amongst "elite" and "respectable" figures. Moreover, while in past years we might have worried about the backlash of flatly declaring a significant political figure racist -- how rude! -- now the calculus has changed. For it turned out that wearing kid-gloves around the racism issue in no way dissipated White racial resentment -- no matter how delicately one tip-toes around the issue, certain White people are just aching to thunder "are you calling ME a RACIST?". And so there's really not a lot of reason to beat around the bush anymore.

Pre-Doctoral Roundup

Berkeley, California has been the fifth city I've lived in over the past five years (in order: Chicago, Champaign, Minneapolis, Washington, Berkeley). That city per year streak comes to a close, as Jill and I are sticking around in Berkeley for at least a few more years yet. I'm enrolling in Berkeley's Political Science Ph.D. program. Moreover, the law school is extending my fellowship (and funding) for at least one more year -- which (in addition to making graduate school considerably less impoverishing than it would otherwise be) means that I can keep my connection to the law community even as I embark on this new adventure.

It will be a bit odd to move over to the demand-side of the education marketplace. But I'm excited to get started, and excited to continue my involvement in the Berkeley community.

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Why "Ashkenormativity" Isn't a Thing. I did not expect this post to be good, and was pleasantly surprised. Not sure I'm ultimately persuaded, but very thought-provoking.

I get the technical objection Justin McBrayer is raising here, but I think "facts are things subject to proof, opinions are matters of pure belief" works as a rough-and-ready distinction suitable for elementary school students. And as one of those darned millennial skeptics of the existence of moral facts, I am obviously dubious that such a belief is responsibility for all the ills of Kids These Days.

My former colleague (and longtime electricity market expert) Bud Earley lays out two views on how distributed generation will effect electric utilities.

Interesting article on how various civil rights centered groups view the ongoing debates over standardized testing. This is, as the article notes, one of the few areas where the mainstream left really is pretty fractured.

Did Hillary Clinton steal Hadassah's logo? Spoiler: No! "H" with a red and blue color scheme is not as original as one might think.

A prominent activist on behalf of undocumented immigrants who warned he would be killed if deported back to Mexico, was killed after being deported back to Mexico. This sort of scenario was, by far, the worst part about clerking. There were many circumstances where I felt pretty confident that a regular person -- not always a saint, but not a monster either -- would be killed if sent back to their home country. But under the laws of the United States and the precedents of the 8th Circuit, their asylum claims were doomed to fail. And so I issued recommendations that I basically knew meant that regular people would be violently killed. It is something that everyone who touches our immigration system has to deal with.

Vicente Fox News

I think Mitt Romney has to be the odds-on favorite to win the GOP nomination. And when he does, this ad will guarantee that he'll be throttled amongst Latino voters.

Keep 'em Out

Mark Krikorian tips his hand -- legal or not, immigrants or just visitors, he just doesn't want Mexicans in our country.

The Accidental Invasion

In the vein of Switzerland's accidental invasion of Liechtenstein last year, and the British attacking a Spanish fishing town a few years prior to that, now we see that the Mexicans have wandered across our very own southern border:

Seven members of the Mexican military were found inside the United States on Friday, telling border agents they had become disoriented while on patrol and accidentally crossed into the country, the U.S. Customs and Border Patrol said.

The incident began about 8 a.m. Friday, when the Border Patrol's Yuma, Arizona, sector was notified that a military-style Hummer was broken down, Customs and Border Patrol said in a written statement.

Agents said they found the vehicle about 200 yards from the Colorado River, and the seven individuals were dressed in military-style clothing. Customs and Border Patrol later determined that the troops' entry was unauthorized.

U.S. agents told the Mexican troops they were inside the United States and "peaceably" took them into custody, the statement said. "At no time were any hostilities exchanged between the agents and military officials."

The Hummer was equipped with a turret-mounted machine gun, the Border Patrol said.

According to Customs and Border Patrol, the soldiers were assigned to the 23rd Regiment Motorized Cavalry of the Mexican Army. The soldiers said they believed that they were still in Mexico because they remained on the south side of a newly constructed border fence.

Oops! How humiliating! Or, for recognized crazy man Rep. Tom Tancredo (R-CO), just another tell-tale sign of the ongoing apocalypse:

"This is not an uncommon occurrence," Rep. Tom Tancredo, R-Colorado, told CNN. "Often times, it is the result of the Mexican military providing cover essentially for drug transportation across into our country, and/or creating a diversion so it will draw our people away from the place where the drugs are coming across."

Happy weekend to everyone!

Civil Rights Roundup: 08/29/08

Your daily dose of civil rights and related news

The backers of the Arizona initiative seeking to ban affirmative action got a reprieve today, as a judge is willing to give them more time to prove they received the requisite number of valid signatures to get on the ballot.

A suit against American contractor KBR alleges that 12 Nepalese workers were held in slavery in Iraq. They were later kidnapped by insurgents, and all but one was executed.

The Mexican Supreme Court has upheld Mexico City's relatively liberal abortion laws, making it a rare pro-choice foothold in largely anti-abortion Latin America.

Gainesville, Florida voters will have a chance to decide whether to keep civil rights protections for GLBT residents.

California is now adopting guidelines for what to do if gay prisoners want to marry.

To acquire Plan B, you might need a plan b, c, and d.

A UCLA professor on that university's admissions committee is resigning in protest. Professor Tim Groseclose wanted to find out if the school was admitting minority students with lower qualifications, presumably in violation of California's Proposition 209. But UCLA refused to release the data Groseclose said he needed. The professor actually claims to support affirmative action, but is angered by the lack of transparency.

The Black elite is taking special pride in Obama's rise, seeing it as reflective of their own hard work and experience.

It seems like the news is focusing on other issues today....