Five random thoughts

  1. Omaha isn’t really in Nebraska. It is sorta like West Council Bluffs, Iowa, (if there was one) but without the ambiance.
  2. On Friday, I sentenced a young Guatemalan woman, with no criminal history. Horror of horrors, she used a fake idea to get a shitty job. Despite the Guidelines, I sentenced her to time served and no supervised release. That way ICE will allow her to depart voluntarily and she will be able to take her three little American-born kids with her back to a country where there is no milk and honey but only grinding poverty. Aren’t I a fucking hero?
  3. In Omaha, I have to go through five security devices from the time I arrive in the secure basement parking garage, travel in the “judges only” elevator, drop my stuff of in the office, put on my wrinkled old robe, and enter the courtroom to imagined trumpets. We federal district judges are certainly special, don’t you know.
  4. When I drove back to Lincoln on Friday, I listened to Rush Limbaugh to punish myself.
  5. As I get ready to go to Sioux City on Sunday to try a difficult civil case in the Northern District of Iowa, I realize why “volunteer” is synonymous with “dumb ass.” Just who in the hell am I trying to impress?

RGK

19 responses

    • I’m not entirely certain that we ever adopted jus soli citizenship by passage of the 14Am–that awkward language was aimed at not giving citizenship to First Nations citizens, who were technically citizens of another sovereign–but no one has proper standing to challenge the status quo. My guess is that, given the composition of the current Court, they might well find that being born here is not a golden ticket to citizenship.

      Hard cases make for bad law. It is arguably in our interest as a nation to not allow for “birth tourism,” followed by the inevitable spectacle of the child as a sponsor of the mother. It is the judge’s duty to apply the law to the facts, and as a certain judge of our acquaintance said in his Standing Bear law review article….

      • My understanding, which could easily be wrong, is that the US does not allow minor children to sponsor their parents to stay in the US. Thus, the most immigrant friendly outcome is that the children return when they are 18, then go through the significant hoops to bring a non-citizen relative to the US lawfully.

        In short, I’m doubtful that birthright citizenship leads to many more non-citizens present in the US (lawfully or unlawfully).

        • You are correct. The US does not allow minor children to sponsor anyone to live in the US. You have to be an adult (and make a sufficient income to support the sponsored individual), to be a sponsor.

      • US v. Wong Kim Ark is clear and unequivocal precedent on this. It has been challenged, and the law is settled for 100+ years. Beyond that, since no rule of naturalization exists for persons born in the United States, and because no proof beyond birth in the United States is required for proof of citizenship, the majority of US Citizens would likely be unable to prove their citizenship without reference to jus soli. There was, by the by, a challenge to this in 1942 with respect to Japanese Americans. Fortunately it was rebuffed. Though we did illegally imprison them and got one of the worst supreme court rulings ever out of it.

        Beyond that, both on an originalist textual reading of the clause, and on the intent of the Congress that passed the clause, it should hold for jus soli. The 14th Amendment was very much designed to guarantee an unequivocal right of citizenship. The main intent was to grant that citizenship to newly freed slaves and other black people who had been deemed not citizens under Dred Scott. However, the way it was phrased deliberately was to provide a very broad right of citizenship with a simple definition, so that no future court or Congress could try to wrest that right away.

        On the textual basis, if you hold that someone can be arrested by the FBI and tried in Judge Kopf’s courtroom, then that someone is subject to the jurisdiction of the United States. So kids of ambassadors do not become citizens (and there are actually questions about that on passport applications and the like). But if you’re subject to the jurisdiction of the criminal laws of the United States, then you’re subject to the jurisdiction of the United States for the purposes of the 14th amendment.

        • I’m not sure it is that clear, if we base it on the intent of those who put the 14Am together.

          “Many today assume the second half of the citizenship clause (“subject to the jurisdiction thereof”) merely refers to the day-to-day laws to which we are all subject. But the original understanding referred to political allegiance. Being subject to U.S. jurisdiction meant, as then-Chairman of the Senate Judiciary Committee Lyman Trumbull stated, “not owing allegiance to anybody else [but] subject to the complete jurisdiction of the United States.” The author of the provision, Sen. Jacob Merritt Howard of Michigan, pointed out that the jurisdiction language “will not, of course, include foreigners.”

          http://www.usnews.com/opinion/articles/2010/08/30/14th-amendment-doesnt-make-illegal-aliens-children-citizens; see also, e.g., https://www.law.upenn.edu/journals/conlaw/articles/volume11/issue5/Smith11U.Pa.J.Const.L.1329(2009).pdf

          As “All persons born or naturalized in the United States, and subject to the jurisdiction thereof” could have meant what they intended it to mean–and when a phrase is ambiguous, we do look to the legislative history–the technically “right” answer may not be the one we were taught in law school. If intent is to matter at all, Wong Kim Ark is just another in a long line of cases where judges “constitutionalize their personal preferences,” not unlike Hans v. Louisiana.

          For the most part, it probably is a moot point, but I could see a fairly credible argument for the alternate view.

  1. Five random responses:
    1. The casinos create the ambiance. The “difference maker.”
    2. Hero. As in sandwich? Yes. An old, crusty, stale sandwich.
    3. They give you a private elevator for us, not for you.
    4. Did you chase the drive with a handful of Oxy? (Rhetorical question.)
    5. http://visitsiouxcity.org/attractions/ (The page is blank. Fitting.)

  2. The whole deal with how we treat our immigrants is not right. I’m glad to hear the judges know it. I have heard United States Attorneys say the same in private conversations.How many people have to know before we can change it?

    • Other countries have no problem with sending illegal immigrants back. Why is this not right? And at what point do you put up the “no room at the inn” sign? This argument doesn’t go one way, like it did in 1813.

      We need to talk about immigration. But giving blanket citizenship to the flood of illegal immigrants is not necessarily the solution, and fixing this problem is, manifestly, above a judge’s pay grade.

  3. As a fellow volunteer, I will comment on random thought number 5. I hope you are not a dumbass. Because if you are, I am, too, and I sure do not fell like a dumbass. I would suggest you stay on as a senior judge ( as a volunteer, in you words) because 1. You like the work, 2. You have colleagues who are also your friends and you want to help them, 3. Even in this cynical world you feel that public service is important and worthwhile, 4. You like all the people you work with and would miss them if you just walked away, 5. You are not sure what else you would do with your time, 6. Keeping your mind engaged will (hopefully) slow the loss of brainpower, 7. You enjoy travelling to exotic places like Sioux City, and 8. You enjoy the work.

    • Dear Bob,

      Thanks, Bob. I needed that.

      I particularly liked the part about staving off dementia. By the way, who are you again?

      All the best.

      RGK

    • Peter,

      “Because I am dumb” is the short answer. The somewhat more accurate answer is that taking cases from outside your Circuit is a more involved task than you might imagine. I have taken cases from the Second Circuit (NDNY), and was all set to go Northern California for a month when my wife got sick with a cancer (for which she is now in remission). So, for now, I am sticking to district courts in the Eighth Circuit.

      All the best.

      RGK

      • Best wishes to you and your wife. Perhaps just a Hawaiian vacation then, without the attendant hassle of having to enforce crazy 9th Circuit precedents.

  4. One of my favorite quotes is from Darrell Issa: “The only difference between God and a federal district judge is that God doesn’t think he’s a federal district judge.”

    Most judges become judges for the power, and stay because they can’t bear to give it up. Only a few will admit it, tho.

  5. Rich, you should just go into the courthouse the way I do. I park in the Woodmen Tower lot (or on the street at one of the meters, depending on how long I’m going to be there), pitch my keys and phone into the little tray, something inevitably sets off the metal detector but they wave that wand around for 10 seconds and conclude I’m fine, and because I’m attorney (which makes me special) I get to take my cellphone in. I’ve been in and out of there so many times the guards all know me now. Maybe they think judges are a bigger threat.

    I guess I can see them wanting to control vehicles in that lower garage given the horror of Oklahoma City. That murderous f**k McVeigh actually cased the Zorinsky Building (for those who don’t know — where the federal courts in Omaha were located before the new courthouse was built) before deciding on Oklahoma City. One thing that I have never, ever been able to get out of my mind is that McVeigh parked that truck right outside the daycare in that building (and he knew it was there) and set the bomb to go off at about 9:30 a.m. as I recall. Best, Pat.

  6. Pingback: Responding To A Conservative and/or An Asshole | Simple Justice

  7. I’m Catholic so now and then I also feel the need to gently punish myself but listening to Limbaugh that’s a bit much.

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