I realize this debate over ICE arrests taking place at courthouses has gotten a lot of play recently, but there’s one new item on the menu which deserves a quick look. It comes to us in the form of an op-ed published this week from none other than Tani G. Cantil-Sakauye, who is the chief justice on the California state Supreme Court. Before we even get into it, it’s worth noting that it’s unusual to see a state or federal Supreme Court justice going public to weigh in on such a politicized, hot button topic. I mean, we’re supposed to at least pretend that the judicial branch of the government is impartial and largely impervious to politics, right? Apparently such quaint notions have gone out of style in California.
The judge starts off by talking about a horrendous domestic abuse case, melding that story into the need for, “trust, confidence and cooperation of all of the participants” in any court activities. It’s a worthwhile goal to be sure, but she paints this picture with an overly broad brush, insisting that ICE enforcement activities are detrimental to the mission of the courts by creating “fear” among those who need to be there. (Washington Post, emphasis added)
It is my concern for the trust and confidence in our state court system that prompted me last month to ask Attorney General Jeff Sessions and Homeland Security Secretary John F. Kelly not to make immigration arrests at or near courthouses. Our state courts are on the front line of justice in the United States: We handle more than 90 percent of the nation’s case filings each year. I am asking that immigration agents treat courthouses as “sensitive” areas — as they do schools, churches and hospitals.
In their response, Sessions and Kelly agreed with me that “the enforcement of our country’s immigration laws is necessary, and that we should strive to ensure public safety and the efficient administration of justice.” …
We disagree, however, on where that enforcement should occur. My request is that they respect the safety needs of the state court system and those who access it. This goes to the core of our system of government, built on the principle of checks and balances. You don’t have to read the Federalist Papers or be fortunate enough to get a ticket to the musical “Hamilton” to recognize the elegant weave of checks and balances set up by our Founders. Our three branches of government are co-equal; our local, state and federal governments have overlapping authority. Each branch and each entity should take care not to act in a way that undermines the trust and confidence of another branch or entity.
It’s that last, highlighted portion which truly brings a new and unwarranted twist into the conversation. The chief justice is actually invoking separation of powers to claim that executive branch conduct (in the enforcement of the law) is somehow “undermining” the authority of the judicial branch simply by carrying out their jobs in or around a courthouse. Does this strike anyone else as a totally exaggerated, if not completely false premise? If LEOs are showing up in a courtroom and overruling the judge’s decisions, disbanding juries or changing sentences then there would be an urgent need to curb their activities. But arresting people who are wanted for crimes is in no way stopping the judge from exercising their authority and responsibilities in the judicial branch.
Note also how this bias against enforcement activity is completely selective. Is she saying that no arrests or law enforcement activity of any kind should take place inside of a courthouse? What if I show up there smoking a crack pipe outside her courtroom? If someone arrests me it could send a chilling wind through the crack smoking community and they might not show up to testify at the next trial, right? How about if I’m scheduled to testify and I arrive with my Glock 17 strapped to my side, absent any permit allowing me to carry it? Should I be arrested for that? I’m guessing that the chief justice would want to see me hauled off and locked up as quickly as possible.
No, it’s just this one specific category of illegal activity that Cantil-Sakauye would like to see law enforcement ignore. Illegal immigration isn’t taken seriously by some people and apparently isn’t worth enforcing as vigorously. The chief justice concludes her column by reassuring us that she isn’t against enforcement at all.
Some of the comments I’ve received after I sent my letter suggest that I am against enforcement of our immigration laws. I am not. I ask for sensible enforcement tactics that do not undermine due process, fairness and access to justice in our state court systems.
Would that were the case, madam, but it doesn’t fit in at all with everything else you’ve written here. If you’re going to ask for “sensible enforcement tactics” you need to stick to your principles and apply that to all violations of the law, not just the ones you might personally object to.
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