The Los Angeles Times reported that newly seated US Supreme Court Justice Brett Kavanaugh spoke up Wednesday in a case being argued before the US Supreme Court in defense of the Trump administration’s view that legal immigrants with criminal records must be arrested and held for deportation, even years after they were convicted and completed their sentences.
Following is a short summation of the case quoting the news article extensively:
In a class-action suit brought in California, lawyers for the American Civil Liberties Union complained the mandatory detention policy has been applied to lawful immigrants who had lived and worked in the community for decades but later being convicted of misdemeanors such as drug possession charges.
Last year, the U.S. 9th Circuit Court of Appeals ruled the mandatory detention rule does not apply to immigrants who were not taken into federal custody “promptly” after their release.
The appellate decision did not shield noncitizens with past crimes from being arrested or deported, but it said they could seek release on bond if the judge found they were not a danger to the public or likely to flee.
The ACLU sued on behalf of lawful non citizens such as Eduardo Padilla, who came to the United States in 1966 as an infant and became a lawful permanent resident.
Eduardo Padilla has five children and six grandchildren, all of whom are U.S. citizens.
Defendant Padilla had two convictions for drug possession in 1997 and 1999 and served 90 days in jail in 2002 for having an unloaded pistol in a shed.
In 2013, federal agents arrested him for those past crimes and held him for deportation.
But he went free after the 9th Circuit court ruled the “mandatory detention” provision did not apply to immigrants such as Padilla.
He was released on a $1,500 bond because a judge decided the defendant did not present a danger and was not likely to flee the United States.
A lawyer for the Trump administration urged the US Supreme Court to reverse the 9th Circuit and uphold mandatory detention for all immigrants with criminal records, regardless of how long they have been free.
ISSUE TO BE DECIDED BY US SUPREME COURT
At issue is a federal statute that calls for mandatory detention and possible deportation for “criminal aliens,” including legal immigrants convicted of crimes ranging from violent felonies to simple drug possession.
The law says the Homeland Security secretary “shall take into custody any alien” with a criminal record that could lead to deportation “when the alien is released.”
The debate before the Supreme Court focused on when, exactly, is when.
The Trump administration argued that a provision of the 1996 law calls for arresting and jailing such immigrants despite their good records since serving their time.
Kavanaugh disputed the ACLU’s contention that this mandatory detention rule applies only to immigrants who can be detained at the time they are being released from local jails or state prisons, not to those released years ago.
Kavanaugh was quoted as saying from the bench “Congress did not put in a time limit. … That raises a real question with me whether we should be superimposing a time limit.”
ACLU lawyer Cecillia Wang pointed to the words of the law when she said: “We’re not asking you to superimpose a time limit. We’re asking you to give meaning to all the words of the statute.”
“Congress, in saying ‘when,’ meant what ‘when’ means in the common sense, within a reasonable time.”
Wang said a reasonable time would be one day, but several justices said that time limit was too short.
However, Kavanaugh went further and said he saw no basis for putting any time limit on arresting immigrants for past crimes when he said:
“My point is that’s very odd when you think what Congress was doing in 1996…. What was really going through Congress’ mind in 1996 was harshness on this topic.”
CODE OF JUDICIAL CONDUCT FOR UNITED STATES FEDERAL JUDGES
The Code of Judicial Conduct for United State Judges applies U.S. circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges.
Surprisingly, the Code of Judicial Conduct for United States Federal Judges does not apply to United States Supreme Court Justices.
You can read the Code of Judicial conduct for Federal Judges at this link:
Canon 2 of the code is entitled “A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities” and provides:
(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
(B) Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. …
Commentary to Conon 2A provides:
“An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges.” …
Canon 3 of the code is entitled “A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently” and provides:
The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards:
(A) Adjudicative Responsibilities.
(1) A judge should be faithful to, and maintain professional competence in, the law and should not be swayed by partisan interests, public clamor, or fear of criticism.
(3) A judge should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity. A judge should require similar conduct of those subject to the judge’s control, including lawyers to the extent consistent with their role in the adversary process.
(5) A judge should dispose promptly of the business of the court.
(6) A judge should not make public comment on the merits of a matter pending or impending in any court. …
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
COMMENTARY AND ANALYSIS
The Code of Judicial Conduct for United States Federal Judges does not apply to United States Supreme Court Judges.
Supreme Courts Justices supposedly follow them, but they are not obligated to obey them.
The argument made is that the Supreme Court is created by the US Constitution and not by the Congress as all other the other Federal courts, and the separation of powers dictates the Supreme Court cannot be regulated by Congress.
Congress, experts in legal ethics, and legal advocacy groups have for years wanted the United States Supreme Court to be subject to the Code of Conduct for United States Judges which applies to all other federal judges.
In the not too distant past, a few Supreme Court Justices have not recused themselves from cases despite persistent doubts about their ability to decide them fairly and impartially.
A good example was when Justice Antonin Scalia, now deceased and replaced by Associate Justice Neil M. Gorsuch, rejected a motion that he recuse himself from a case that provided a textbook example of the circumstances a Justice should avoid.
Scalia’s close friend Dick Cheney, who was then the Vice-President, was accused of lying about the composition of a White House group that was setting national energy policy.
While the case was pending, Scalia and Cheney went duck hunting together, and Cheney gave Scalia and two of his family members a ride on a government Gulfstream jet from Washington, D.C., to Louisiana, where they did their hunting.
Associate Justices Brett Kavanaugh and Neil M. Gorsuch are the best examples why the Code of Judicial Conduct for United States Federal Judges should apply to United States Supreme Court Judges.
You would think the United States Supreme Court would want to follow the very same code of professional conduct as all federal judges, but they no doubt enjoy the unfettered power without any oversight to impose their political philosophy and call it strict constitutional interpretation.
Associate Justice Brett Kavanaugh is as biased and as political as they come.
Prior to being appointed a US Federal Court of Appeals Judge, Kavanaugh was a political operative who worked in the administration of President George W. Bush.
It was reported that George W. Bush lobbied Republican Senators to confirm Kavanaugh to the Supreme Court.
Previously, Kavanaugh worked as a prosecutor with special prosecutor Ken Starr at the time President Bill Clinton was being investigated which probably explains his unhinged testimony at his confirmation hearing the the Clintons were out to get him, something he offered no proof to support the claim.
As a Supreme Court Associate Justices, Brett Kavanaugh and Neil M. Gorsuch have been given the authority to interpret the law to conform with their political philosophy and Trump Administration policies and judicial ethics be damned.
Kavanaugh with his unhinged testimony before the Senate Judiciary revealed his true self and showed he does not have the judicial temperament to be a US Supreme Court Justice.
He did not deal with the Senate Judiciary in a “dignified, respectful, and courteous [manner] … with whom [he was dealing with] … in an official capacity.”
Kavanagh and Associate Justice Neil M. Gorsuch were both appointed by President Donald Trump.
It is highly doubtful that neither Kavanaugh nor Gorsuch will ever disqualify themselves from hearing any cases regarding Trump if Trump is subpoenaed to testify before a grand jury or if he issues pardons to himself, family and associates for any and all crimes committed against the United States, including treason.
I do hope Associate Justice Brett Kavanaugh continues with the Republican operative approach to supporting all things Trump and Republican in that it will eventually be grounds for his impeachment and removal from the Supreme Court for being swayed and articulating Republican partisan interests.