From: Hispanic News

One day before Arizona’s new tough immigration law was supposed to go into effect, a federal judge temporarily blocked some of its controversial provisions.

Some aspects of the law will be carried out on schedule. But Judge Susan Bolton of Federal District Court in Phoenix issued a preliminary injunction against sections that required immigrants to carry papers with them at all times and that called for the police to check a person’s immigration status while enforcing other laws. She also delayed the part of the law that made it illegal for undocumented workers to solicit employment in public places.

Gov. Jan Brewer’s legal team is expected to file an expedited appeal today of the judge’s order with the United States Court of Appeals for the Ninth Circuit which is a federal court with appellate jurisdiction over the Arizona District Court.

Judge Bolton’s order is expected to withstand an appeal to the U.S. Court of Appeals for the Ninth Circuit. According to Federal judicial appointment history, the Ninth Circuit has the highest percentage of active judges appointed by Democrat presidents, with 59%.
Critics point to this preponderance of appointees of Democratic presidents as evidence the court has a liberal bias.

Most overturned court in the United States

Of the 80 cases the Supreme Court decided this past term through opinions, 56 cases arose from the federal appellate courts, three from the federal district courts, and 21 from the state courts. The court reversed or vacated the judgment of the lower court in 59 of these cases. Specifically, the justices overturned 40 of the 56 judgments arising from the federal appellate courts (or 71%), two of the three judgments coming from the federal district courts (or 67%), and 17 of the 21 judgments issued by state courts (or 81%).

Notably, the 9th Circuit accounted for both 30 percent of the cases (24 of 80) and 30 percent of the reversals (18 of 59) the Supreme Court decided by full written opinions this term. In addition, the 9th Circuit was responsible for more than a third (35%, or 8 of 23) of the High Court’s unanimous reversals that were issued by published opinions. Thus, on the whole, the 9th Circuit’s rulings accounted for more reversals this past term than all the state courts across the country combined and represented nearly half of the overturned judgments (45%) of the federal appellate courts.

The 9th Circuit also hears the most cases of any of the circuit courts and thus has the most decisions move on to the Supreme Court.

The United States Supreme Court

Justice Anthony Kennedy, who already decides whether liberals or conservatives win the Supreme Court’s most closely contested cases, is about to take on an even more influential behind-the-scenes role with the retirement of Justice John Paul Stevens.
By virtue of seniority, Kennedy will inherit Stevens’ power to choose the author of some court opinions, an authority that has historically been used – including in as big a case as the landmark Roe v. Wade abortion decision – to subtly shape a ruling or preserve a tenuous majority.

This change might keep the court’s most liberal justices from writing some of its biggest decisions.

An unwritten high court rule gives the senior justice in the majority, most often the chief justice, the power to assign opinions.

When the liberals win an ideologically driven case by a 5-4 vote, the court’s two senior justices – Chief Justice John Roberts and Justice Antonin Scalia, both conservatives – are sure to be on the losing side. With Stevens gone, Kennedy now is next in line.

The overall balance of power on the court is unlikely to change, with President Barack Obama’s choice of Elena Kagan to replace the liberal-leaning Stevens.

But a former Bush administration solicitor general, Paul Clement, said putting the power to assign opinions in Kennedy’s hands is the “single most important dynamic change” brought on by Stevens’ departure.

David Garrow, a Cambridge University historian who has written about the court, said the 74-year-old Kennedy already writes a disproportionate share of the court’s big decisions and will have even more chances to do so now because he can assign opinions to himself.

As if to emphasize Kennedy’s increasing clout, he and Scalia now will sit on either side of Roberts when the justices take the bench for the start of their new term in October. Like most things at the court, the seating is by seniority. The justices who have been there longest sit on either side of the chief justice, who wields the gavel regardless of tenure.

Scalia, a justice since 1986, now is the longest-serving. He occasionally will get to assign an opinion, but typically not in the big cases that split the liberals and conservatives. Kennedy has been on the court since 1988.

Handing an opinion to the least committed member of a narrow majority is the most obvious and important use of the assigning power, several former high court law clerks said. “You figure that justice will feel compelled to stay on board,” said Michael Dorf, a former law clerk to Kennedy who teaches law at Cornell University.

In an important free speech case in 1971, the justices voted 5-4 to overturn a criminal conviction for wearing a jacket with a phrase that used a four-letter expletive to oppose the military draft. Justice William O. Douglas “immediately assigned it to John Marshall Harlan who was clearly the weakest link,” said Lucas A. “Scot” Powe Jr., a Texas law professor who was a law clerk for Douglas.

Sometimes justices have used their power in more mischievous ways.

Chief Justice Warren Burger’s colleagues used to complain he occasionally changed his vote – after the justices declared their positions at their closed-door conferences – just to retain the ability to assign opinions. Justice William Brennan, the court’s senior member for many years, “thought Burger was manipulative in his use of the assigning power,” said University of Chicago law professor Geoffrey Stone, who worked for Brennan.

When the court was deciding the Roe v. Wade abortion case, several justices believed Burger was in the minority and favored upholding state restrictions on abortion, according to an account of the episode in Bob Woodward’s and Scott Armstrong’s “The Brethren.” Yet after their conference on the issue, Burger said he was assigning the opinion to Justice Harry Blackmun.

Blackmun would go on to be the court’s champion of abortion rights, starting with his opinion in Roe v. Wade in 1973. But it was less clear at the time Blackmun would so strongly endorse abortion rights and Douglas worried about the outcome.

It’s difficult to assess the effect of Kennedy’s new power.

His pivotal role until now – somewhere between the more conservative and the more liberal justices – has allowed him to dictate how far the court could go in many areas.

In 2007, for instance, Kennedy was unwilling to join the four conservatives to eliminate considerations of race in voluntary efforts by public school systems to increase diversity in their classrooms.

Perhaps, Garrow said, Kennedy might move away from the conservatives in close cases, knowing disagreeing with them “would put him in the decision maker’s seat.”

Or, he said, Roberts might come to the realization “he needs to work all the more to keep Kennedy inside the conservative tent.”

Another possibility is Kennedy might keep an opinion for himself that Stevens would have handed off to another liberal justice. Kennedy might write the same decision more narrowly than Stephen Breyer or Ruth Bader Ginsburg would have, Dorf said.

Doug Kendall, president of the liberal-leaning interest group Constitutional Accountability Center, worried Stevens’ retirement means there is “no guarantee any of the term’s biggest opinions will be written by a member of the court’s left flank.”

Stevens, who was the senior justice since 1994, was accomplished at producing 5-4 opinions that “moved the law significantly in a progressive direction,” Kendall said.

With Kennedy calling the shots, he said, the liberals might have to get used to smaller victories.

Translation: The probability is high, the appeal of Arizona Law SB1070 will be decided 5-4 by the United States overturning an appeals court ruling and upholding Arizona SB 1070.

If Arizona SB 1070 is upheld by the U.S. Supreme Court, the only alternative is passage of Comprehensive Immigration Reform that addresses the needs of all undocumented rather than a selective few.

Immigrant rights groups adjust focus to passage of AgJobs, Dream Act

Some immigrant rights groups are shifting the strategy in their so-far unsuccessful push to overhaul immigration law: They’re calling the new tactic the “down payment” approach.

“We are aware that the clock is running out, and there are no guarantees a Congress supportive of immigration reform will be returned in November,” said Antonio Gonzales, president of the William C. Velásquez Institute, a Latino public policy group. “We took a deep breath and said, ‘Okay, we need a Plan B.’ ”

That plan centers on lobbying hard for the passage of two bills: AgJobs and the Dream Act. AgJobs is a compromise between farmworker unions and agriculture business groups, which was negotiated more than five years ago and is intended to provide legal farm labor and protect the rights of immigrant workers. The Dream Act would give some undocumented students the ability to apply for permanent residency. Both bills have had Republican support in the past.

Lizette J. Olmos, spokeswoman for the League of United Latin American Citizens, called the bills “critical building blocks” toward assuaging frustrated Hispanic groups. The new approach is an admission that they’re not getting any traction on the broader policy overhaul.

For the past 18 months immigrant rights groups have been pushing the White House to get behind a plan to create a path for citizenship for illegal immigrants as President Obama promised during his campaign. In recent months — with the passage of a controversial new law in Arizona that targets illegal immigration — it has become clear that such a plan is politically untenable.

There is also a sense among the immigrant rights groups that advocates of tougher immigration enforcement are having more success. In an effort to convince Republicans to support comprehensive immigration reform, Obama has instructed the Immigration and Customs Enforcement agency to “to make our national laws actually work,” as he put it in a speech this month at American University.

The agency expects to deport about 400,000 people this fiscal year, nearly 10 percent more than the Bush administration’s 2008 total and 25 percent more than were deported in 2007. The pace of company audits has roughly quadrupled since President George W. Bush’s final year in office.

“The other side is getting more money for enforcement, more funding for fences, more money border patrols,” Olmos said. “It was supposed to be a two-prong approach, not just one prong.”

That is the message LULAC, the Hispanic Federation and other immigrant rights groups are taking to Capitol Hill this week.

Hispanic News

Hispanic News is supportive of the Dream Act but not AgJobs. Hispanic News believes temporary farm workers that enter into the United States to work should receive an expedited process to receive a green card with assurance of eventual citizenship.

Never the less, passage of piece meal legislation including the Dream Act will never achieve enabling 12 million Hispanics to come out of the shadows and if Arizona SB 1070 is upheld by the U.S. Supreme Court, America’s undocumented will continue to live in fear, intimidation, harassment, racism, years in ICE detention centers, deportations, and most importantly, the dilution of potential voters from children born in the United States.

Only Comprehensive Immigration Reform that includes the Dream Act will End SB1070.

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