I wonder if this isn’t a closer case than suggested. Here’s the link Andy provided describing the Board. Among other things, it provides: ”The Board is directed to exercise its independent judgment in hearing appeals for the Attorney General.” As pointed out, it is an executive branch entity. So, the attorney general issues guidelines, as explained in an earlier post, directing the INS to give careful consideration to China’s coercive family planning policies in deciding asylum petitions, and the Board that works for the attorney general responds by saying, in essence, that it doesn’t apply to it? This seems a little slippery, does it not? The attorney general’s position was communicated through the guidelines. It was known, including to the Board. The Board reports to him. Its members are inferior employees. But it says, in effect, you must not mean us since you referred to the INS? Yet, this is the Board that makes these determinations re asylum. Maybe the guidelines weren’t perfected to the satisfaction of the Board. But who cares? The Board knew what the boss’s position was and decided it didn’t apply to it. This seems odd. Clearly the attorney general didn’t intend for his asylum guidelines to be ignored by the Board, which appears to have taken the opposite substantive position on asylum for this particular petitioner.
The post also indicates that Congress passed a law similar to the Meese guidelines (I guess) and Bush 41 vetoed it. As an aside, do we know whether this was a stand alone bill and the reasons for the veto? The Clinton administration apparently derailed the Barr rule, which would have reversed the Board’s ruling as well, according to the post. So, that would take us back to the Meese guidelines, which, if they hadn’t been withdrawn or modified by subsequent attorneys general, would seemingly still be in effect. I don’t know that to be the case, but am commenting from the post. Therefore, the issue for a judge wouldn’t be whether to substitute his own policy preferences for the political branches, but to rule on whether the Board was correct in rejecting the Meese guidelines.
(I am busy writing another book, so I admittedly am limiting my comments to the information provided here on the forum.)
Now, having said the above, please don’t misconstrue what I have said. I am impressed with the judge’s record, as summarized by Andy and others, re the war on terrorism. And I must say, that’s no small matter. It also suggests an approach to the law that deserves much credit. So, those who would oppose his possible nomination to AG have a high bar to jump if they expect to rally opposition among conservatives. But there are those of us who have not practiced before this judge, and are not intimately familiar with his rulings over the years, and we’ve just heard of the possibility of his nomination for AG.