RBG vs ACB on immigration issues

October 8, 2020
Linda M Kaplan

We mourn the loss of Ruth Bader Ginsberg (RBG) for many reasons. When I heard that she had died, I gasped out loud.  It was difficult to catch my breath. For me, it is very personal because I started working as an attorney at a time when women practicing law was an oddity. When I was an undergraduate studying economics there were, more often than not, no other women in my classes. At the University of Florida law school, there was a new Dean of Admissions the year that I applied and a groundbreaking 20% of my class were women. However, the classes admitted for the two years before me were less than 5% women so the entire law school had less than 10% women in its three-year program. When we graduated, it was to a Florida Bar that was overwhelmingly male (and white but that is not the subject of this blog).  In 1977, only 8 women had served in the federal judiciary at the District or Circuit Court level. See Doing Justice, Doing Gender by Susan Ehrlich Martin and Nancy C Jurick. I graduated from law school a few years after RBG was starting her work with the ACLU Women’s rights project so I followed her work as I began work as an attorney.  

Most of you have probably read about the legacy of Justice Ginsberg on gender discriminations, equal pay and reproductive justice issues. In the days after her death, many organizations spoke out about her legacy.  One organization that I follow closely is the American Immigration Council. One of their projects is “Immigration Impact” which is the only news site exclusively committed to covering immigration issues. According to its website, it was launched in 2008 to help shape and develop a rational conversation on immigration that shifts the terms of the debate toward achieving workable and effective comprehensive policy reform. Immigration Impact published on Sept 23rd (which now seems like a year ago) an article on RBG’s Legacy on Immigration which, as they point out, shows that her vision for justice did not end with her work on gender equality. They point to the following positions on immigration that had a lasting impact:

  • Helped overturn the Trump administration’s decision to end the Deferred Action for Childhood Arrivals (DACA) initiative.
  • Blocked an Arizona law that made undocumented status a state crime and required state police officers to check the immigration status of any person in their custody before releasing them. The law also allowed state officers to detain anyone they suspected of undocumented status.
  • Upheld the constitutional right of noncitizens to challenge their detention in government custody.
  • Defended placing limitations on prolonged immigration detention by:
    • Joining the majority to prohibit the indefinite detention of immigrants subject to deportation who could not be sent back to their country of origin.
    • Dissenting to a majority opinion that allowed certain immigrants to be held in lengthy, mandatory detention.
    • Dissenting to a majority opinion that found immigrants in prolonged detention had no right to regular bond hearings

As has been pointed out in many forums, she never gave up even when her opinions were dissenting opinions. She reminds us about “the dissenter’s hope: that they are writing not for today, but for tomorrow.” 

It is traditional for Jews to say to mourners – May her memory be a blessing. The article in Immigration Impact ends with “May her memory always be a blessing and a reminder of benevolence.”

So what is the record of Amy Comey Barrett on immigration that can be gleaned from her meager three years on the Seventh Circuit? It is mixed. In one case, she prevented the Trump administration from ending a policy that allows immigration judges to indefinitely close deportation cases for immigration who are not a priority for enforcement, giving them a chance to live in the US without fear of deportation. As to anti-immigrant rulings, she sided with the Trump administration over Trump’s policy imposing a wealth test for immigrants. Her dissent argued that the US has a right to block people that think might become dependent on public assistance in the future despite having never used public assistance in the past (for the record, Immigrants use substantially less public assistance than those born in the U.S.) The majority opinion in that case argued that this law “sets a trap for the unwary by penalizing people for accepting benefits Congress made available to them” She has also refused to review numerous cases of immigrants applying for humanitarian protections or other immigration benefits that they believed were wrongly denied to them.  

The bottom line about ACB at this point is that she only has three years of experience as a Judge and a mixed record on immigration issues. In my mind, this is something that needs to be explored during confirmation hearings. Will she rule fairly and with benevolence towards immigrants? 

Linda M Kaplan
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