The "Balls and Strikes" Fraud Continues to Wither Under Scrutiny

The Right regularly attacks progressive judges for "making policy" and "legislating from the bench." But in oral arguments yesterday, the Supreme Court Justices demonstrated yet again that one of their most important roles is to make policy in difficult circumstances where the law is unclear.

The case involves a man named José Padilla who was born in Honduras and has lived in America for 40 years. (He is no relation to the former "enemy combatant" of the same name). Considering whether to plead guilty to trafficking in marijuana, he turned to his lawyer for advice. Relying on the lawyer's incorrect assertion that a guilty plea would not affect his immigration status, he pled guilty and now finds himself subject to deportation.

The Court must decide if Padilla was unconstitutionally deprived of effective assistance of counsel and should therefore be allowed to withdraw his guilty plea. During oral argument, Justices across the ideological spectrum appropriately asked probing questions as they wrestled with difficult policy options. The Washington Post reports:

Justice Sonia Sotomayor ... said the threat of deportation was an important component of a defendant's decision on whether to go to trial and risk a longer sentence, or plead guilty to a charge that would automatically send him back to a place where he "might starve to death."

But other justices worried that it would be impossible to limit the issue to deportation -- a tack that Padilla's attorney Stephen B. Kinnaird suggested was one way to narrowly decide the case.

"We have to decide whether we are opening a Pandora's box here, whether there is any sensible way to restrict it to deportation," said Justice Antonin Scalia. "What about advice on whether pleading guilty would -- would cause him to lose custody of his children? That's pretty serious. What if pleading guilty will -- will affect whether he can keep his truck, which is his main means of livelihood, or whether -- whether it would be seized by the government as the instrument of his crime?"

Justice Samuel A. Alito Jr. said he was sympathetic to Padilla's predicament. "Your argument has an appeal because removal is such a harsh consequence, particularly for someone like your client, who had been in the United States for a long time," he said. But he wondered how to ever know whether such a conversation had occurred between client and attorney.

Clearly, deciding difficult cases like this is not as easy as simply calling balls and strikes.

I look forward to hearing those who vigorously complain about "legislating from the bench" condemn Justices Scalia and Alito for yesterday's questions.

I also look forward to seeing exactly what process they propose the Justices use to call this a ball or a strike.


Excellent Choice for Homeland Security

One of the very best cabinet picks that President-elect Obama has made got a bit lost in yesterday's "team of rivals" coverage.  Arizona Governor Janet Napolitano to head the Department of Homeland Security is a brilliant pick. She'll bring a combination of smarts, no-nonsense pragmatism, and moral clarity to an agency - and set of issues - much in need of all three. No one knows better than she - as an extremely popular and effective border state Governor - what it will take to move forward with serious immigration reform.  And, with respect to the Department's overall agenda, she's got the toughness to walk that fine between keeping us safe while adhering to fundamental constitutional values.


Virgil Goode Loses Seat

Virginia Congressman Virgil Goode (R) lost his reelection bid to Democrat Tom Perriello by 745 votes, according to official results certified today by the Virginia State Board of Elections.

Goode gained prominence when he joined the far-right attack on Rep. Keith Ellison (D-MN), the first Muslim member of Congress, who had chosen to use a Quran in a swearing-in photo-op. Previously known for his focus on illegal immigration and sponsorship of bills to build a fence on the US-Mexican border and amend the Constitution to prevent children of illegal immigrants from becoming citizens, Goode managed to connect those issues with Ellison’s Quran in a letter to some of his constituents:

Dear Mr. Cruickshank:

Thank you for your recent communication. When I raise my hand to take the oath on Swearing In Day, I will have the Bible in my other hand. I do not subscribe to using the Koran in any way. The Muslim Representative from Minnesota was elected by the voters of that district and if American citizens don’t wake up and adopt the Virgil Goode position on immigration there will likely be many more Muslims elected to office and demanding the use of the Koran. We need to stop illegal immigration totally and reduce legal immigration and end the diversity visas policy pushed hard by President Clinton and allowing many persons from the Middle East to come to this country. I fear that in the next century we will have many more Muslims in the United States if we do not adopt the strict immigration policies that I believe are necessary to preserve the values and beliefs traditional to the United States of America and to prevent our resources from being swamped.

The Ten Commandments and “In God We Trust” are on the wall in my office. A Muslim student came by the office and asked why I did not have anything on my wall about the Koran. My response was clear, “As long as I have the honor of representing the citizens of the 5th District of Virginia in the United States House of Representatives, The Koran is not going to be on the wall of my office.” Thank you again for your email and thoughts.

Sincerely yours,
Virgil H. Goode, Jr.
70 East Court Street
Suite 215
Rocky Mount, Virginia 24151

When the statements attracted controversy, Goode stood by the letter, which he had personally written. He responded to the criticism in an op-ed in USA Today, where he played the 9/11 card:

Let us remember that we were not attacked by a nation on 9/11; we were attacked by extremists who acted in the name of the Islamic religion. I believe that if we do not stop illegal immigration totally, reduce legal immigration and end diversity visas, we are leaving ourselves vulnerable to infiltration by those who want to mold the United States into the image of their religion, rather than working within the Judeo-Christian principles that have made us a beacon for freedom-loving persons around the world.

Ironically, Ellison was ultimately sworn in on Thomas Jefferson’s Quran, and Monticello, Jefferson’s estate, is in Goode’s district.

Goode later continued his attention-seeking extremism as one of the leading proponents of the North American Union/ NAFTA superhighway conspiracy theory, along with Jerome Corsi, Phyllis Schlafly, and the John Birch Society. He warned that immigration reform “will lead us on a path to likely have a North American currency, will further break down the borders between our countries, and it really undermines the concept of the United States of America in favor of something called North America. And it will harm the lifestyles and the status and standing of most American citizens.”

Goode has requested a recount, which he is entitled to, but it appears that he no longer has the honor of representing the citizens of the 5th District of Virginia in the United States House of Representatives.



One in 10 Hispanics Questioned about Immigration Status

Via ThinkProgress, news of a recent Pew Hispanic Center study that found one in 10 Hispanics are stopped by authorities who question them about their immigration status. Forty percent of the Hispanics surveyed say they worry "a lot" about deportation and "an additional 17% say they worry some that they themselves, a family member or a close friend may be deported."

Among other types of racial profiling the survey reported:

  One-in-seven (15%) say that they have had trouble in the past year finding or keeping a job because they are Latino. One-in-ten (10%) report the same about finding or keeping housing.

As one ThinkProgress commenter put it: "Living While Hispanic. It's the new Driving While Black."


Proving Once Again That Courts Matter

American Federation of Labor, et al. v. Michael Chertoff, No. C 07-04472 CRB (N.D. Cal.)

A federal district court judge in California last week gave America another good example of why courts matter. Judge Charles R. Breyer put a stop, at least for now, to a governmental effort that would likely have resulted in the firing of potentially tens of thousands of legal workers this fall, all in the guise of a crackdown on illegal immigration.