Loyal Bushies As Immigration Judges -- What A Concept

We have heard a lot lately about immigration judges. According to the Legal Times America's 226 immigration judges handle about 300,000 immigration cases each year. They rarely issue written opinions while deciding cases ranging from the status of asylum seekers to the rights of immigrants marrying U.S. citizens. My niece and her husband who have been living abroad for the last several years will without doubt encounter one of our immigration judges when they return to the US with the little Chinese girl they recently adopted.

Starting at about $115,000 per year, plus full benefits, the pay is reasonably good. Immigration judges are considered civil service employees. When the Bush administration leaves Bush appointees won't have to find work. As mentioned immigration judges don't have to write much, so for most lawyers the work is relatively easy. All in all, the job of immigration judge is highly coveted.

According to the Legal Times

Historically, those hired for the positions were vetted by the Executive Office of Immigration Review and its recommendations were forwarded to the Office of the Deputy Attorney General — where they were almost uniformly approved. Sometimes this process took place without public advertisements for the posts and without competing candidates.

In recent years somebody realized that the job of "immigration judge" was a wonderful patronage opportunity. The Attorney General has the power to override the EOIR process and directly appoint whoever he wants. Again from the Legal Times.

The shift in the method of hiring immigration judges began late in Ashcroft’s tenure. At some point members of his staff realized that EOIR had long been appointing at least some immigration judges without open competition. Hearing of this, Susan Richmond Johnson, one of Ashcroft’s closest advisers, remembers thinking, “Why are we not using it? It’s an authority of the attorney general.”

This change led directly to the raw politicization of the appointment process revealed last week by Monica Goodling. If you are well connected within the Republican party, have a law license and are a loyal Bushie, you can be an immigration judge.

One of the judges appointed by the attorney general is Garry Malphrus. According to TPMMuckraker his story is pretty typical.

A former Republican aide on the Senate Judiciary Committee, Malphrus also worked on the White House's Domestic Policy Council before becoming a judge. But he really showed his stripes in 2000, when Malphrus joined other Republicans in making a ruckus (chanting, pounding on windows and doors) outside the Miami-Dade Elections Department -- the so-called "Brooks Brothers Riot" -- during the Bush-Gore recount.

Malphrus, of course, had no immigration experience when he got the job, McLure reports. He had that in common with a number of his peers, who had similar backgrounds:

Among the 19 immigration judges hired since 2004: Francis Cramer, the former campaign treasurer for New Hampshire Sen. Judd Gregg; James Nugent, the former vice chairman of the Louisiana Republican Party; and Chris Brisack, a former Republican Party county chairman from Texas who had served on the state library commission under then-Gov. George W. Bush.

It is pretty clear that treating the job of immigration judge as a patronage plumb didn't start with Goodling. Malphrus was hired before Goodling ever became involved in the process. According to Goodling's written testimony.

Around the time I became White House Liaison in April 2005, Mr. Sampson told me that the Office of Legal Counsel (OLC) had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions.

The DoJ maintains that "recent appointees have been well-qualified and that the department draws on candidates from 'diverse legal backgrounds' and 'considers applicants based on the totality of their professional records.'"

We can almost hear the Republican defense. Politicians love patronage jobs. After all patronage is how they keep their friends and supporters happy. Patronage is a key to maintaining political power. Bush gets to appoint some of his political staff to good paying jobs between campaigns. So what? If Democrats win, they can appoint their own campaign workers. Go win the next election.

Why is it important that we appoint seasoned and highly qualified people to be immigration judges?

An answer to that question might be found this morning's New York Times. Julia Preston reports on a study of 140,000 asylum cases--cases decided by our immigration judges and concludes that "asylum seekers in the United States face broad disparities in the nation’s 54 immigration courts, with the outcome of cases influenced by things like the location of the court and the sex and professional background of judges."

The variation from court to court is startling. An asylum seeker in Atlanta has a 12% chance of winning his case. An asylum seeker in San Francisco wins 54% of the time.

Even more shocking is the variation from judge to judge. In Miami one judge awards asylum to Colombians 5% of the time. Another judge just down the hall awards Colombians asylum 88% of the time. Read the entire article. It is shocking.

From the lowest municipal court deciding speeding tickets to the United States Supreme Court, every organized court strives for consistency. The rule of law insists upon the fair and uniform application of the law to the facts regardless of who is deciding those facts or applying the law. At the same time organized courts recognize that every judge is different. Every judge brings his or her experiences to the job. For that reason appellate courts review decisions, providing consistent supervision to subordinate courts. For that reason judges spend lots of time going to seminars. They talk among themselves. They look over each other's shoulders. New judges are most often drawn from the ranks of experienced lawyers practicing in the field, often in the same court. Consistency of decision is key to the perception that a litigant is getting a fair shake. It is a key component of the Rule of Law.

I don't know if the inconsistency among our immigration courts and judges started with the Bush administration, or if the problem has only been made worse by the AG's use of the job as a patronage plum. It is pretty clear that this is an issue that needs additional reporting.