National Immigration Law Center Evaluates Supreme Court Frontrunners

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 Christopher Cole for Law360 reports that “[t]he National Immigration Law Center examined the records of a trio of judges reportedly on President Joe Biden’s shortlist for the nation’s top court — U.S. Circuit Judge Ketanji Brown Jackson, U.S. District Judge J. Michelle Childs and California Supreme Court Justice Leondra Kruger — and issued a generally favorable view of each coupled with what the group said were caveats.”

Here is the NILC report.  This is the discussion of the three leading candidates in the Executive Summary:

“Judge Ketanji Brown Jackson (U.S. Court of Appeals for the D.C. Circuit) has the most developed record on immigration-related matters, and her record is mixed. 

• Notably, whether ruling for or against immigrants, Judge Jackson has consistently acknowledged the humanity of immigrants by declining to refer to them as “aliens” or “illegals;” 
• In a close call, Judge Jackson asserted the power of the federal court to check the Trump administration’s abuse of executive authority in expanding expedited removals; and
• After the Trump administration changed documents so that they incorrectly stated asylum law, Judge Jackson held the Trump administration accountable by requiring it to provide relief for those harmed by the administration misstating the law.
• However, Judge Jackson rejected a challenge to two Trump-era immigration programs that improperly prevented asylum seekers from consulting with a lawyer;
• Judge Jackson denied a challenge to Trump’s border wall, holding that the challenged statutes were exempt from judicial review.

On the U.S. District Court for the District of Columbia, Judge Jackson was bound by circuit and Supreme Court precedent. As a Justice, she would be setting precedent. If she is the nominee, a deeper inquiry into her record on immigration related issues will be required. 

Judge J. Michelle Childs (District Court for the District of South Carolina) has only ruled on a few immigration-related cases, and the most substantive of those decisions raises concerns about her deference to executive power. 

• Judge Childs deferred to a federal agency that had failed to evaluate the work authorization for an undocumented immigrant who was the victim of a crime. By failing to intervene, she effectively permitted the agency to either delay or never issue the authorization.
• However, Judge Childs allowed a lawsuit from a foreign-born doctor to proceed in which he claimed his employer was illegally changing his job requirements and threatening to terminate his work visa if he did not comply.
• If Judge Childs is selected, her record warrants a deeper examination of her rulings around workers’ and immigrants’ rights, as well as her jurisprudence around the degree of deference afforded to federal agencies.

As a member of the California Supreme Court, Justice Leondra Kruger’s relevant opinions generally concern the intersection of state law and immigration and demonstrate an awareness of the challenges immigrants face in asserting their rights. 

• Justice Kruger authored a unanimous decision allowing an undocumented immigrant to withdraw a guilty plea after he was merely advised that his plea might result in his removal from the country. Justice Kruger wrote this was inadequate to satisfy the legal requirement that immigrants be advised of immigration consequences of certain convictions.
• In another unanimous decision, Justice Kruger held that a father who had abandoned his daughter at birth was not an essential party in her custody case. This finding allowed the child’s special immigrant juvenile case to move forward.

With a thinner record on immigration issues and fewer rulings implicating federal law, the nomination of Justice Kruger should prompt further inquiry into how she approaches administrative and constitutional law. “

View the full report.

KJ