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There’s a piece in the September 21 New York Times about waves of legislation beginning in California to expand the social integration of non-citizens, partially in response to the Republican Party being held hostage by its extreme right wing in the matter of comprehensive immigration reform, as in everything else.

The title of this diary is meant ironically, and those who are looking for legal advice to maintain some kind of structural xenophobia should go elsewhere.  After all, I am of American Indian descent, and if you get me started on immigration, you may not like where the conversation would end up.

No, I’d like to make a suggestion that is so futile I can’t write it without smiling: issue-by-issue pragmatism.   You are on notice that you may have to suppress your giggles below the fleur-de-kos, because I’m proceeding as if the xenophobic elephant were not sitting right over there on the sofa.

The license to drive a car should be the ultimate no-brainer, not just for non-citizens but even for undocumented non-citizens.  Does nobody remember when he or she did not have a license?

The purpose of the license is not to benefit the driver.  It’s to benefit those of us who must share the roads with the driver.

First, the test is supposed to guarantee a minimal level of competence in the operation of a motor vehicle.  You over there—on the floor, holding your ribs—I said minimal.

Second, the license bureau is one of the choke points to check for liability insurance, to give us some protection if the quality of driving was not completely up to snuff.

Third, the physical address on a license gives an investigator a jumping off place to track an individual down and the identification requirements at the front end of the process give us some sense of with whom we are sharing the roads we would not otherwise have.  Ask any police detective whether it is better to find a license with the wrong address or no identification at all.

The purpose here is a benefit that flows in both directions.  State supported schools are cheaper for those whose local taxes have funded the schools and graduates tend to earn more money and pay more of those taxes in the future.

I see no persuasive reason why residence requirements should be based on citizenship, since everybody pays those local taxes one way or the other.  Sales taxes directly; property taxes indirectly.  While undocumented non-citizens don’t pay income taxes, neither do most teenage citizens.

This is not about citizenship but rather about residence.  Don’t beat up immigrants from Bangladesh any worse than you would immigrants from North Dakota.

It’s a profession, folks.  If you think those people practicing law or any other profession need to be protected from immigrant competition to keep their fees high, then by all means protect them.

I know how you love to pay high fees.

There are licensing requirements for professions as well as continuing education requirements and professional discipline systems.  These exist to protect the public from incompetent or dishonest professionals without regard to citizenship.  If they don’t do the job, you need to fix them.

In short, if you want to protect the public, make sure the regulations to protect the public are strong.

If you want to protect the profession…whatever.

Are you kidding me?

Do we ask the Carter Center to only send citizens out as election monitors?

Would you have trusted Mississippi to clean up its own elections in 1961?


Poll watchers are not allowed to touch.  They only document.  Hopefully, they record and photograph.  It’s better that they not know the people they are watching.  

In this case, I don’t understand the objection.

In this case, I do understand the objection.

The objection is both formal and practical.  The formal part is troublesome.

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law….
The Seventh Amendment provides for a trial by jury in civil federal cases, although it’s not specific about where the jurors should come from.

Many states have analog provisions, criminal and civil.  But the practical objections seem to me more troublesome than the formal objections.

In the United States, the jury is a formidable cultural counterweight to the inbred habits of the legal profession.  Sometimes we don’t like how that plays out and sometimes we do, but that is a function of juries, and it’s one of the major reasons why we have juries.

We demand a lot of jurors we don’t demand of ordinary people.  For example, in most states jurors are required to be fluent in English, because it is the language of the courtroom just as it is the language of airplane cockpits.

We have empowered juries in so many ways.  Juries tell us what is obscene.  Juries tell us what is fair.  Juries tell us what is too loud.  Juries tell us what is reasonable.

When juries speak for us in these ways, they speak with as much a sense of permanence and commitment as legislators.  They are the community, the inside defining the community for the outside.

But as long as I am indulging a pretense of pragmatism, let me say that I, like most trial court judges, have spent most of my career pulling and tugging to get enough warm body citizens into the jury box to hear the cases on my docket.

Until I can accomplish that without breaking a sweat, it will be difficult for me to support turning away any honest person who is willing to serve.  Please give that bit of practicality some thought the next time you receive a jury summons and you have something better to do, as you always will.

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