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Fair Courts E-Lert 7/10/20: Immigration Judges Sue DOJ Over Speech Restrictions

This Fair Courts E-Lert highlights a lawsuit filed by Immigration Judges who are claiming that the DOJ’s restrictions on their speech are unconstitutional, a new report on judicial misconduct, and more.

Published: July 31, 2020

Immigration Judges Sue DOJ Over Speech Restrictions

On July 1, the National Association of Immigration Judges (NAIJ) sued the Department of Justice (DOJ) in the Eastern District of Virginia, alleging that new DOJ rules about public statements by immigration judges impose unconstitutional restraints on their right to free speech. NAIJ is a union representing immigration judges employed by the DOJ.

The policies NAIJ is challenging were implemented by the DOJ’s Executive Office for Immigration Review (EOIR). The first order, issued in 2017, required judges to obtain preapproval before speaking at an event in their personal capacity, and prohibited Deputy Chief Immigration Judges and Assistant Chief Immigration Judge from doing so at all. In 2020, the EOIR replaced this policy with a more restrictive measure, categorically preventing immigration judges from speaking in their personal capacity about immigration and EOIR programs.

In this moment, the plaintiffs note, the rules prohibit immigration judges from speaking about how Covid-19 has impacted immigration courts and those who are currently detained. Immigration courts largely remained open amid the pandemic, though some courts closed briefly for cleaning before reopening after court employees tested positive for Covid-19. 

Report Finds Judges Who Face Misconduct Allegations Largely Remain on the Bench

At the end of June, Reuters released a nationwide “comprehensive accounting of judicial misconduct.” As part of their investigation, they analyzed 1,509 instances from 2008-2019 in which judges resigned, retired, or faced sanctions for acts of misconduct.

The report found that 9 out of every 10 judges who oversight bodies determined had committed misconduct were allowed to retain their position after facing sanctions. According to Reuters, the judges’ misconduct included “a California judge who had sex in his courthouse chambers… a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench.”

In addition, the investigators found that the judges’ misconduct affected at least 5,206 individuals, including those who were illegally incarcerated or forced to endure sexual harassment or racist treatment at the hands of a judge.

Experts have recently called for increased accountability and transparency in judicial misconduct investigations, arguing that such acts undermine public faith in the judiciary and harms the integrity of the justice system.

New Data on the Lack of Demographic and Professional Diversity in the Federal Judiciary

As the Senate confirmed his 200th judicial nominee, President Trump faced renewed criticism for the lack of diversity in his nominations. According to Bloomberg Law, Trump has not appointed a single Black nominee, and has only appointed one Latino nominee, to a federal appeals court despite filling 53 vacancies to those courts thus far. Trump is the first president since Richard Nixon who has not nominated at least one Black judge to serve on a circuit court. Even though President Obama appointed the most diverse slate of judges in the country’s history, nearly three-quarters of all Article III federal judges today are white, and over 66 percent are men.

A new analysis from the Center for American Progress (CAP) found that the federal bench also lacks professional diversity. Only one percent of all federal appellate judges worked as public defenders or legal aid attorneys for most of their pre-judicial careers, while 65 percent spent the majority of their careers in private practice. According to CAP, a more professionally diverse bench will “result in an improved jurisprudence that better recognizes a variety of people and lived experiences.”

Vacancy on Rhode Island Supreme Court Raises Concerns about Race and Ethics

A rare vacancy on the Rhode Island Supreme Court has sparked discussion about representation in the state’s judiciary. Justice Gilbert V. Indeglia retired on June 30, creating the first vacancy since 2010.

According to the Brennan Center, Rhode Island is among the 23 states with an all-white state supreme court bench, and is one of 12 states that have never had a person of color as justice, though people of color make up nearly 30 percent of the state’s population.

Black leaders in Rhode Island, including state Senator Harold M. Metts, are calling on Gov. Raimondo to appoint Superior Court Judge Melissa A. Long, who, when appointed to her current position, was the only Black person serving on the state’s bench.

Among the other candidates is state Senator Erin Lynch Prata. Her nomination has raised ethics concerns after Lynch Prata asked to be considered for the seat on the state’s high court despite a “revolving door” rule which would have prevented her from applying until she had left the legislature for at least a year. Though the state’s Ethics Commission originally wrote an opinion prohibiting her from applying to the seat, the Commission later ruled that she would be able to do so.