In my previous comments, I have pointed out that, of course, it is critically important to conduct a full and unimpeded FBI investigation against the very serious sexual misconduct allegations against D.C. Circuit Judge Brett Kavanaugh. Since Donald Trump has made clear again and again that he wants to keep Mexican "rapists" out of the United States, should he be putting an alleged US citizen attempted rapist on the nation's highest court for life without letting the FBI determine, without interference, whether there may be any truth to these allegations?

However, unfortunately, the focus on Kavanaugh's alleged sexual misconduct toward women as a student, none of which has so far been proven, has obscured a serious and comprehensive analysis of his judicial record involving immigrants' rights and related issues which could determine what kind of a society America will be for many decades to come, In previous Immigration Daily comments, I have discussed and cited articles dealing with some of Kavanaugh's opinions as a Circuit Court Judge which show as certain lack of sympathy, if not open hostility, toward the rights of both legal and unauthorized immigrants.

As I mentioned in my previous comments, in one case, involving whether a foreign chef was qualified or a work visa under the L-1 statute, Kavanaugh not only argued in his dissent that the chef did not meet the statutory L-1 qualifications (a not unreasonable view according to the facts of that case), but then he launched a full scale attack on the sponsoring employer for allegedly not giving preference American workers in its hiring practices.

In fact, not only had the employer hired many American chefs, but more importantly, it was not required to give preference to or recruit American workers under the law involved. Therefore, Kavanaugh's opinion went far beyond what was relevant to a decision of the case and sounded more like taking points typical of anti-immigrant organizations (or of the Senate Judiciary Committee's notoriously anti-legal immigration chairman, Charles Grassley) than something normally found in a judicial opinion.

In his dissent in another immigration case, involving the right of a detained 17-year old immigrant girl to obtain an abortion, Kavanaugh spoke contemptuously of the idea that there might be any such right at all for an undocumented immigrant woman.

And, as i also pointed out previously, in a case involving a union election which unauthorized immigrant workers took part, Kavanaugh went against not only the clear language of the controlling statute, but also against Supreme Court precedent (admittedly with some justification in the latter instance), in his opinion contenting that the workers involved should not have been allowed to vote in the union election.

In addition to the above decisions dealing directly with immigration, I have also cited articles showing that Kavanaugh has been unsympathetic to rights of litigants in other issues which could very arguably affect the rights of immigrants, such as religious freedom and the due process rights of Guantanamo detainees.

Now, in a September 4 article in Time Magazine, University of Chicago Law School professor Justin Driver warns that Kavanaugh's elevation to the Supreme Court could lead to overturning the landmark 1992 Supreme Court decision in Plyler v. Doe, which guarantees all immigrant children, including undocumented ones, the right to attend school in the United States. See:

Kavanaugh May Threaten Undocumented Children's Education


Professor Driver writes:

"Trump's successful presidential campaign, which cast unauthorized immigrants as bogeymen, revealed unmistakably that nativist sentiment exerts a powerful force throughout the country. That reality indicates that it is only a matter or time before localities, states, and perhaps even the federal government enact measures challenging Plyler."

Driver continues:

"Yet while it was exceedingly difficult to envision [Justice Anthony] Kennedy abandoning undocumented children. it seems eminently plausible that Kavanugh would do so. The reason is simple: Kavanaugh, unlike Kennedy, has been a steadfast, even an exuberant, participant in the Republican party's movement for constitutional conservatism, and the G.O.P. has now coalesced around an anti-immigrant ethos. Where Kennedy often bucked Federalist Society orthodoxy, only a naif would doubt Kavanaugh's devotion."

In the course of the exceptional cruelty and inhumanity that the Trump administration has shown in targeting immigrant children in particular - witness the infamous, now abandoned , family separation policy, the unconscionable proposal to make use of government benefits that are especially important to children grounds for denial of green cards on public charge grounds, and as I wrote about on October 1, the latest reported move to send thousands detained immigrant children to a South Texas tent camp where they will receive no education at all; depriving immigrant children of their constitutional right to an education may not be the only item on this administration's agenda involving vulnerable immigrant children that Kavanaugh may have a chance to rule on.

With him on the Supreme Court, the right of tens of millions of US-born children with immigrant parents to US citizenship could come under attack. Kavanaugh might very well be the deciding vote in seeing to it that that these American-born children lose much more than just their constitutional right to an education.

Roger Algase
Attorney at Law