Appellate Court Nominations May Be More Important for Immigration than SCOTUS

By Dan Cadman, November 18, 2016

Merrick Garland's nomination to the Supreme Court by President Obama is now obviously doomed by Donald Trump's White House win, and the Republican majorities in both chambers of Congress.

I imagine that right about now, Garland probably feels a little like the character Terry Malloy, memorably played by Marlon Brando in "On the Waterfront": "I coulda had some class. I coulda been a contender. I coulda been somebody." If only Senate Majority Leader Mitch McConnell had let Garland's nomination move forward through the advice-and-consent process. But he didn't.

I've seen McConnell's intransigence described as "brilliant" in hindsight. I think that moves the bar a little high. Seems to me that although it was the right strategic move for the moment, it was also more like a "hail Mary" or perhaps a "run-out-the-clock" play born of desperation — nothing to lose and everything to gain by forcing a time-out in the unlikely event of a Republican presidential victory — and clearly McConnell thought it unlikely, given his tepid support of Trump throughout the lead-up to the election.

Notwithstanding which, the nomination process is now Trump's to proceed with, in order to put someone onto the Supreme Court with solid conservative credentials who can unlock the four-four gridlock that has formed since the unfortunate death of Antonin Scalia. That's a great thing (although speaking of tepid, please for heaven's sake, no more like John Roberts, thank you very much).

Presumably such a sitting justice would do much to bolster the arguments of immigration enforcement advocates such as us here at the Center: That there are constitutional limits to what a president should be permitted to get away with in the absence of legislation; and, concurrently, that he or she is required to honor the "take care" clause by complying with those federal statutes that are on the books.

Who knows, maybe the president-elect will even have two vacancies to nominate to the high court if Ruth Bader Ginsberg makes good on her promise to decamp to New Zealand were Trump to be elected ... that is, if the Kiwis are willing to admit her on the promise that she will honor their immigration laws better than she did ours while on the Court.

But as important as Supreme Court appointments can be, I sometimes wonder if their significance is overblown in the relative scheme of the federal judiciary. It's a numbers thing: The Supreme Court, being of finite capacity, can only hear so many cases each term, about 180 according to the Court's website, of which 100 are summary decisions, with only 80 getting the full-blown hearing-and-oral-argument treatment that truly defines federal law.

By comparison, the federal courts of appeal heard 54,244 cases. Significantly, according to the Administrative Office of the United States Courts, "BIA [Board of Immigration Appeals] appeals accounted for 84 percent of all administrative agency appeals and constituted the largest category of administrative agency appeals in each circuit except the DC Circuit." That's astounding. And what it means is that every time a federal appellate court makes a decision that doesn't wind up on the Supremes' docket, it becomes binding no matter how good or bad the decision.

If one were to add to the BIA figure the number of immigration filings handled by appellate courts that don't originate there — for instance, those that develop in U.S. District Courts such as habeas corpus proceedings filed by detained aliens or lawsuits against federal immigration agencies in attempts to get their operational practices and policies enjoined (I have detainers and immigration bonds in mind) — we can see that alien-related litigation is a huge portion of the federal judiciary's workload. It's also a realm in which activist federal district and appellate judges who are inclined toward liberal-progressivism in their interpretive decisions, can — and do — have a huge and adverse impact on the direction of immigration enforcement in the United States.

By way of example, consider the Ninth Circuit Court of Appeal's rulings that habitual alcoholics, who are removable by law, can nonetheless prove good moral character for purposes of applying for naturalization; or that persons convicted of engaging in the commercial pirating of software aren't necessarily debarred from applying for relief from removal, because the crime isn't necessarily one of moral turpitude — despite the obvious implication that such conduct is inherently fraudulent.

The point is this: The Obama White House has used its eight years to stack the judicial deck. At this juncture in time, the Trump administration can only count on four years to affect the future direction of the courts, and therefore our country, through its own judicial appointments at all levels of the federal judiciary, but particularly the appellate courts.

I know they will have a lot on their plate, but it would behoove Trump's strategists to incorporate a piece that concentrates on fleshing out lists of good, capable, strict interpretation jurists whose nominations can be put forward promptly whenever and wherever the opportunity presents itself.