Dick Thornburgh, Footnote 8, and Me

Sunday, January 3rd, 2021
By: Jonathan MontagJ.D.

On New Years Eve Day, Richard L. Thornburgh, a former governor of Pennsylvania and a former United States Attorney General, died. As Attorney General of the United States, Thornburgh played a leading role in the enactment of the Americans with Disabilities Act of 1990.

I didn’t know and never met Mr. Thornburgh. (I know more “-bergs” than “-burghs, for one thing.). However, in 2006 our professional paths briefly crossed.

In May 2006, the United States government appealed a Ninth Circuit  case in which I was the attorney to the Supreme Court.

When a case you are on ends up at the Supreme Court, law firms from all over contact you to take it from you. There are enticements, like big firms will pick up the printing fees – Supreme Court filings need to be printed into nifty little booklets that cost money to print. Also, the attorneys will do all the work. Supreme Court cases are relatively rare and firms seeking to be players in the market for Supreme Court litigation business need experience to entice rich clients like billion-dollar corporations. I remember a young attorney, Tom Goldstein, called me to offer to take the case off my hands.

I ended up forming a small consortium of attorneys, a team. There were famous professors, white shoe litigators, and me. I proposed that I would write initial drafts of whatever briefing there was and then the team members could edit them and turn them into the little booklets we needed. One particular thing the team did was remove most references to Ninth Circuit precedent, explaining that they lacked persuasive authority.

Our job was to file our response to the government’s petition for writ of certiorari, the government motion to ask the Supreme Court to review the case. My draft was transformed in many ways. One thing that remained at my insistence was a footnote, I believe it was Footnote 8. Footnote 8 was a semi-cheeky response to the government’s argument that whatever injustice the deportation of the clients would suffer was not remediable by law, but the government had means to extend kindness to the clients through alternative forms of relief it could extend. I was somewhat incensed at the government’s suggestion that the removal apparatus was a humane one. I wanted my response to remain, albeit buried in a footnote. Footnote 8 was one of the few pieces of “me” left in the brief.

What the government, in its petition for a writ of certiorari, had written was:

In practice, as this Court has noted, “the Executive has discretion” to abandon removal efforts or to stay execution of a removal order, and for years “ha[s] been engaging in a regular practice (which has come to be known as ‘deferred action’) of exercising that discretion for humanitarian reasons.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-484 (1999); see, e.g., 8 C.F.R. 241.6. The immigration judge himself suggested that deferred action by the INS (now, the Secretary) would be the proper means for addressing the humanitarian concerns raised [in the case].

The day our response to the petition to the writ of certiorari had to go to the printer, I got a call from a team member. He told me that Dick Thornburgh would sign our brief if we got rid of Footnote 8. The team members explained to me that having Governor Thornburgh sign the brief would be a huge boost to our case. Way outside of my normal expertise, I reluctantly acquiesced to the removal of Footnote 8.

Now that Governor Thornburgh has died, I will share Footnote 8:

The government asserts it is Petition that the dilemma for the Tchoukhrova family … can be resolved by granting the family deferred action. Petition at 21-22. This option has been available to the government since before it initiated removal proceedings against the family, and, it could have exercised its prosecutorial discretion not to initiate removal proceedings against the family. It never took any approach other than seeking the family’s deportation. Had the government done what it said it could do, this case would have never gone to the Court of Appeals. If the government expected the Tchoukhrova family to wait until an airplane was fueling on the tarmac to deport them to Russia for it to show its humane side instead of pursuing their remedies in the Court of Appeals, it expected too much. If the government expects the Tchoukhrov family to believe that the government is ever going to reveal its humane side, it again expects too much.

It was true in 2006 and true now. Ironically, the government did exercise  humanity in the case. However, I do not think it was because it wanted to be nice. I think it wanted stop the case from going back to Judge Stephen R. Rheinhardt, who wrote the original decision. Posted January 3, 2021.


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