'Do You Believe Illegal Immigrants Should Be Allowed To Vote?': Lindsey Graham Presses Jackson

Photo credit: Gage Skidmore/CC BY-SA 2.0, via Flickr

At the Senate Judiciary Committee confirmation hearing for Judge Ketanji Brown Jackson's Supreme Court nomination, Senator Lindsey Graham (R-South Carolina) asked Jackson about immigration policies. You can also read the conversation below this video.

Sen. Graham: Do you believe illegal immigrants should be allowed to vote, judge Jackson? 

Judge Jackson: Thank you, senator. Under our laws, you have to be a citizen of the united states in order to vote. 

Sen. Graham: So the answer would be no? 

Judge Jackson: It's not consistent with our laws so the answer is no. 

Sen. Graham: Why do they do that in new york? 

Judge Jackson: Senator, I'm not aware of the circumstances. 

Sen. Lindsey Graham: Good answer. The answer is no. Can an unborn child feel pain 20 weeks in the birthing process?

Judge Jackson: Senator, I don't know. 

Sen. Lindsey Graham: Are you aware anesthesia is a time period if there is an operation to save the baby's life because they can in fact feel pain. 

Judge Jackson: I'm not aware of that. 

Sen. Graham: That may come before you one day so keep an open mind. That's the only thing I ask you to do. You said just a bit ago that you apply the law and the facts and call them as you see them; is that right? 

Judge Jackson: that is correct, senator. 

Sen. Graham: You look at the statute as the way it's written and you try to apply it in its plain meaning; is that correct?  

Judge Jackson: that is correct, senator. 

Sen. Graham: Have you heard of a case called to make the road vs. Mclean? 

Judge Jackson: Make the road in new york, yes. 

Sen. Graham: make the road in new york, who are they?

Judge Jackson: Make the road new york is a nonprofit that represents various individuals in the sort of immigration law field. 

Sen. Graham: Right they are a nonprofit advisors advocacy group. Did you know they receive large donations from the Arabella network and George Soros open society network? 

Judge Jackson: no. 

Sen. Graham: Well, they did. Now, in that case, what was the issue?

Judge Jackson: the issue, in that case, was a challenge to a change in administration policy concerning expedited removal, which is a policy that congress enacted. In order to expedite certain removals in the immigration system. Ordinarily, before expedited removal.

Sen. Graham: Asylum cases do not fall in this category, right? 

Judge Jackson: well. 

Sen. Graham: Trust me on that because the statute says it doesn't. 

Judge Jackson: if a person who could otherwise be subject to expedited removal makes and has a credible fear of torture in their country they can be.

Sen. Graham: Can they make that claim?

Judge Jackson: They can be determined to qualify for regular removal rather than expedited removal.

Sen. Graham: so expedited removal is a creature of Congress, folks. And if you have been here two years or less, the statute -- the statute would allow the administration in office to have expedited removal avoiding a lot of the hurdles that would exist otherwise for people here two years or less. So, in the Obama -- even bush years, they did not look at it in terms of applying it to everybody. Some people coming by air got expedited removal, others didn't. 

The Trump administration decided to use the authority given to it by Congress to remove all eligible cases two years or less under the expedited removal statute. Is that a fair summary? 

Judge Jackson: Well, senator, I would say it differently. 

Sen. Graham: Well, say it differently. 

Judge Jackson: The statute that you put up indicates that Congress is giving the department. It says the attorney general but now it's the department. 

Sen. Graham: Right.

Judge Jackson: The ability to determine what category of aliens.

Sen. Graham: two years or less. 

Judge Jackson: yeah, but, importantly, the authority was -- it was not congress saying two years or less. What congress said is your agency has the authority to determine what category of persons between -- who have been here between zero and 24 months. 

Sen. Graham: which is two years.

Judge Jackson: no, forgive me, senator, what I'm trying to explain is that the authority given to the agency was to determine what length of time. 

Sen. Graham: They had the impression to make that.

Judge Jackson: What length of time? It was not the authority to deport everyone who has been here for 24 months. It was the authority to determine what length of time a person has to be here in order to be subjected to expedited removal. 

Sen. Graham: Here's what the statute says. The attorney general, which is actually the a.G. Secretary. May apply one and two of this subparagraph to any and all aliens described in subclass two designated by the attorney general, actually DHS. Now, I have been in this business for quite a while. 

What the Trump administration did was to use the discretion given to it by statute in a way different than prior administrations. This advocacy group, the Arabella-supported advocacy group tried to strike it down. You rule for them. Here's what the D.C. Circuit said about your ruling.

 There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expanded removal within statute or bounds to the secretary's independent judgment. The forceful phrase "Sole and unreviewable discretion" by its exceptional terms. Such designation shall be in the sole and unreviewable discretion of the attorney general and may be modified at any time. To those of us in the law writing businesses, I don't know how you could tell a judge more clearly that the administration, the agency in question has the discretion to do certain things within the statute. So this is an example, to me and you may not agree, where the plain language of the statute was completely wiped out by you. 

You reached a conclusion because you disagreed with the Trump administration and the D.C. Circuit of appeals said, as I have quoted just a minute ago, there could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal within the statute or bounds to the secretary's independent judgment. 

You can watch the complete interaction in the video shown in this article above.