Final Post

Since this is our last post on our Posner blog we thought it would be fitting to end with a Posner rap that was created by one of Professor Birmingham’s former students in a prior semester. We have learned a lot about Judge Posner this semester and his opinions and oral arguments have been nothing but entertaining. This clip shows some highlights of some of his best moments.

“Privacy is overvalued”

Just yesterday the House of Representatives overwhelming approved legislation to end the federal government’s bulk collection of phone records. Under the bill, the patriot act would be changed to prohibit Bulk collection by the National Security Agency of Metadata charting telephone calls made by Americans.

Judge Posner’s thoughts on the matter prior to the House’s decision however caused some controversy. His words were very of course very entertaining as always.

“I think privacy is actually overvalued…Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct…Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you…Congress should limit the NSA’s use of the data it collects—for example, not giving information about minor crimes to law enforcement agencies—but it shouldn’t limit what information the NSA sweeps up and searches…If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that’s fine.”

Many people responded to these statements with criticisms and questions regarding Judge Posner’s stance. Where do you draw the line? What is considering going to far? How do you balance a person’s need for privacy and also work towards improving national security? How important is someone need for privacy?

Posner seems to feel that the information on an individuals phone as no big deal. He does not understand why people are against giving up the information on their cell phones and states, “If someone drained my cell phone, they would find a picture of my cat, some phone numbers, some email addresses, some email text…Other people must have really exciting stuff, Do they narrate their adulteries, or something like that?” However Judge Posner fails to consider how phones have been an essential part of many individuals lives, not only do people have email, texts and phone calls but many people also now have bank information, credit card information, medical information and numerous other important information on cell phones that are not necessary to be exposed. It is unrealistic to think that most Americas just have photos of their animals or keep useless information on their phone that they would not want protected. Who knows in the future what kind of additional information people will be keeping on their phones, with the ways in which technology continues to progress. People carry a reasonable expectation of privacy on their phones in most cases. If there is no reasonable expectation of privacy with the contents of your phone then what is next. Privacy is extremely important and an interest that needs to be balanced sufficiently before it is given up in any circumstances.

With the house’s decision, in a way Posner did get some of what he wanted in that the NSA is not denied complete access to the information they are just not allowed to collect it. It also allows the agency to search data on a case-by-case basis, which is a good way to avoid any abuse of power that may stem from too much power to intrude on an individual’s privacy. The house’s decision serves as middle ground and a good balance to allow individuals to maintain their privacy and still allow the NSA to employ additional measures if the best interest of our national security requires it. It will be interesting to see how this new law plays out.

Posner’s Views on Mock Trials

Recently, U.S. Supreme Court Justice Ruth Bader Ginsburg joined by Justice Stephen Breyer and three D.C. federal judges presided over a mock proceeding at the Shakespeare theatre company Sidney Harman Hall in Washington, DC was convened to decide on a matter regarding Don Quixote, a character in a Spanish novel by Miguel De Cervantes Saavedra. In the novel, the main character Hidalo reads so many romance novels that he loses his sanity and heads off “to revive chivalry, undo wrongs and bring justice to the world under the name of Don Quixote.” The mock trial looked at whether or not he was so delusional that he needed a guardian and ended with a ruling in favor of Don Quixote.

In law school, we see mock trial competitions play a large role in the law student experience as many students are eager to get actively involved, and a lot of faculty, well known judges, and attorneys get involved. It was interesting to find that Judge Poser had some interesting thoughts on Mock Trials. Apparently in a 2012 speech, Judge Posner criticized the Supreme Court judges, as he likes to do, for participating in mock trials. He called the mock trials “ridiculous” and stated that the judges “have no competence.” But this clearly did not deter judges and justices from continuing to participate in mock trial competitions.

Upon looking further into this issue, it appears that Judge Posner actually has some strong thoughts on the subject of Mock Trials and actually wrote an article in 2013 called “Mock Trials and Real Justices and Judges”, which was published in the Cardozo Law Review in 2013 where he laid out his viewpoint on Mock Trials. Richard A. Posner, Mock Trials and Real Justices and Judges, 34 Cardozo L. Rev. 2111, 2129 (2013). Overall he does not believe in judges participating in Mock Trial programs that are not adequately structured to preserve the reputation of the trial. He starts out by giving a description on the different forms of mock trials and why judges agree to do them. He attributes the judge’s willingness to participate in a Mock Trial to a combination of factors. For example “the Court’s light caseload of recent years, the decline in the value attached to dignity and formality in today’s America, the diminished respect for authority, and the growth of the electronic media, which has increased the access of officials including judges to the media, has eroded the culture of oracular reticence and remoteness that judges and Justices once embraced.” Id. at 2129. He also adds that modern technology enables a video to be made of a mock trial, with good production and little cost, enabling the trial to reach a much larger audience. Id.

Then he describes the role of judges in Mock Trials and notes that the judge’s conduct in a mock trial has a big effect on the quality of the Mock Trials that are put on. Posner states, “The judges and Justices tend not to take their role in the mock trials as seriously as the lawyers do…Often they joke and clown— and when they do, the lawyers often take this to be an invitation, which they gladly accept, to join in the fun, provoking laughter by the audience. This is low comedy, and I find it distasteful”. id. at 2128. He continues this critique by stating,

“It seems that many, perhaps most, of the judges want to show how sharp and funny they are, and that many, perhaps most, of the members of the audiences for the mock trials are looking for a good time. If low comedy is what the mock-trial market wants, so be it. My own view, marking me no doubt as a grinch or sourpuss, is that the only possible value of a mock trial is educational—educating an audience about legal history and forensic methods (and their limitations).” Id. at 2148

Because of this he feels that Mock Trials are not realistic and as instructive they should be. He feels that the level of participation by the judges and the amount of humor that occurs in mock trials takes away from the educational purpose of the trial. With regards to mock trials of fictitious characters Posner feels that these don’t “contribute to anyone’s enlightenment.” He feels that mock trials more or les “symptomizes the broader ills of contemporary “celebrity culture.” Posner makes a valid point, especially since mock trials are in many cases based off of fictional circumstances such as the recent Don Quixote mock trial noted above. Its easy to see how the mock trial can turn into something less serious and more comical if procedural standards are not set out in the beginning.

Judge Posner then goes on to detail his own experience with Mock Trials and lays out 5 steps that he feels if done right will assure a decent minimum level of quality, and avoid making a laughing stock of the genre. These steps are:

“1) maximum realism, a desideratum that limits the choice of suitable trials and is most likely to banish cheap humor and maximize the educational value of a mock trial; 2) minimizing the role and number of judges, and using a jury wherever possible (and where there is a jury, one judge is enough); 3) enlisting the audience as the jury, 4) requiring the lawyers to submit briefs 5) holding a planning meeting, well in advance of the trial, attended by all the trial participants except jurors, to assure that everyone is well prepared and understands the ground rules.” Id. at 2148

Posner offers valuable insight and good advice for mock trial programs. His concerns are warranted, as Mock Trials should be conducted for its educational purposes and serve as a realistic view of what trial advocacy is actually like. Law students for sure benefit more from those kinds of experiences and judges and attorneys alike benefit from taking part. His steps towards creating a more superior mock trial program are also very reasonable, easily implemented, and steps that will positively impact the structure of a mock trial program. It will make mock trials more realistic and parties participating more involved, prepared, and enlightened.

Posner’s Stance on Super PACs Means No Support for Either Party

Back in 2010, the Supreme Court held in Citizens United v. Federal Election Commission that Congress cannot limit expenditures in political campaigns as long as the spender, who might be an individual or an organization, including a corporation or union, is not affiliated with or acting in concert with the candidate or political party. The Court held that such “independent” expenditures are not campaign donations, which can be regulated. These “independent expenditure-only committees” are better known today as Super PACs. Super PACs may raise unlimited sums of money from corporations, unions, associations and individuals, then spend unlimited sums to overtly advocate for or against political candidates. Unlike traditional PACs, Super PACs are prohibited from donating money directly to political candidates.

While Super PACs were originally thought of as an unfair vehicle for the Republican Party Democrats have somersaulted onto the Super PAC bandwagon. In fact, Democratic Super PAC contributions outstripped Republican contributions by roughly $65 million in 2014, according to the figures compiled by the Sunlight Foundation’s Real-Time Federal Campaign Finance tracker.

And just yesterday a new and controversial face has become band leader. As reported by the New York Times:

Hillary Rodham Clinton will begin personally courting donors for a “super PAC” supporting her candidacy, the first time a Democratic presidential candidate has fully embraced these independent groups that can accept unlimited checks from big donors and are already playing a major role in the 2016 race.

Clinton’s new stance on Super PACs has not gone unnoticed. While not directly attempting to discredit Clinton, Sen. Bernie Sanders, another Democratic presidential prospect, has stated he would not make use of a Super PAC due to his belief that the American political system gives outsize influence to millionaires and billionaires. Sanders went on to say:

“Let me say it this way: If elected president, I will have a litmus test in terms of my nominee to be a Supreme Court justice, and that nominee will say that we are going to overturn this disastrous Supreme Court decision on Citizens United.”

A new Supreme Court Justice? Lets us make a suggestion: Judge Richard A. Posner.

In the Becker-Posner Blog, the Great Judge Posner acknowledged why some candidates may benefit from Super PACs: new entrant candidates may have an informational disadvantage against opponents belonging to a well-known “political dynasty” (think the Bush or Clinton or Kennedy dynasties). However, he goes on to argue that given the emergence of new media in the Internet era. The Internet greatly reduces the expense of disseminating information and that nowadays most people are getting political information from social media, blogs, tweets, and other modes of communication. Therefore, the Super PACs need not be relied on in order to help candidates.

However, Posner’s real beef with Super PACs is that it “is difficult to see what practical difference there is between super PAC donations and direct campaign donations, from a corruption standpoint.” He calls the Supreme Court naive for reasoning in Citizens United that the risk of corruption would be slight if the donor was not contributing to a candidate or a political party, but merely expressing his political preferences through an independent organization such as a Super PAC—an organization neither controlled by nor even coordinating with a candidate or political party.

He concludes that:

It thus is difficult to see what practical difference there is between super PAC donations and direct campaign donations, from a corruption standpoint. A super PAC is a valuable weapon for a campaign . . . the donors to it are known; and it is unclear why they should expect less quid pro quo from their favored candidate if he’s successful than a direct donor to the candidate’s campaign would be.

Since United Citizen and Posner’s blog post, he has not had any opportunity to address Super PACs in the legal realm. However his words cannot go unnoticed. As one commentator has noted “It’s not that Posner’s comments will sway votes, after all he’s not exactly a celebrity. But the people paying attention to him will shape the direction of the law for decades to come. And if a leading conservative thinker has lost respect for the GOP, that’s worth noticing.”

This may mean that Posner himself and any Republican Party members he may have influenced, have been pushed towards Democratic Party lines as the party has traditionally been against Super PACs. However, Clinton’s new-found support for Super PACs clearly clashes with Posner’s view. It seems now that Posner and his followers cannot support either party.

Posner, How Do You Sentence Baltimore Protestors?

Just a few days ago, Dean Shelley Broderick of the David A. Clarke School of Law not only urged students to take part in protests taking place in Baltimore, but even offered to defer exams for those who help people on the street with legal advice. The Baltimore protests are in response to the death of Freddie Gray, an African-American man who died while in police custody. The protests are just another example of the Black Lives Matter Movement that began when George Zimmerman was acquitted for the murder of Trayvon Martin and has continued with the death of other African-American men at the hands of police authority such as Michael Brown in Ferguson, Missouri and Eric Garner in New York City.

The protests have been a mix of peace and legal disorder. This may be the reason that Dean Broderick is urging students to provide legal assistance to protestors. Knowing that some protestors may find themselves in the legal justice system, it is curious how their actions will be scrutinized. The protests, like the Movement itself, has roots in legitimate racial justice issues but its course of action had been fueled by emotion. Thus, the question is whether these emotions will be viewed as a reason to find these protestors in the wrong as oppose to as justified in their actions.

In chapter entitled “Emotion versus Emotionalism in Law,” Judge Posner addresses the role emotions plays in individual decision-making as well as in the legal justice system. Judge Posner notes that:

…theorist argue that emotion is a form of cognition, not just in the obvious sense that emotional reactions are usually triggered by information built also in the sense that an emotion expresses an evaluation of the information and so may operate as a substitute for more conventional forms of reason. For example, when we react with anger to being informed of some outrage, the reaction expresses disapproval, and we might have arrived at the same place as the end point of a step-by-step reasoning process.

From this passage, a clear argument can be made that the protests, powered by frustration and anger, is the natural and logical response to the death of so many African-Americans at the hands of the police. The people of Baltimore would have protested eventually, but their emotions have caused the protests to essentially begin overnight. However, from this argument we cannot reach the conclusion that how the protests themselves have developed are logical. The Baltimore protests have also been termed the “Baltimore Riots” filled with looting and public disorder (CNN actually has two separate web pages discussing the events; one is labeled the  “Baltimore Protests” and the other is the “Baltimore Riots“). Thus, though a step-by-step reasoning process would have led to protests, the process does not necessarily lead to protests that harm the community in the process.

So if these protestors found themselves before a judge, how would their actions be viewed? At one side we can see that “[p]articular emotional reactions in particular situations can, thus, often be praised as appropriate to the situation[.]” A judge could find their actions as legitimate. However, such emotions can also be “criticized as inappropriate either because they are evoked by misinformation or because they are based on an incorrect evaluation of the situation.” The Baltimore Protests, like the protests that came before have been known to lack the full story of the event in question. For example, the death of Trayvon Martin was for a long time in essence a case of “he said – she said.” Under this circumstance, the actions of the protestors could not be viewed as justifiable by a judge.

Posner would probably take this view. Posner believes that “a number of the strongest emotions such as anger, disgust, indignation, and love, would be out-of-place because they would interfere with the problem-solving process rather than provide an efficient shortcut.” Moreover, Posner would find it difficult to condone the acts in Baltimore leading to the destruction of homes and businesses and the harm of other individuals. Thus for Posner, such acts would be found to be contrary to law and worthy of punishment.

Nevertheless, Posner would probably take emotions into consideration when imposing punishment. He states that

The cognitive element in emotion shows that when a criminal is punished more heavily because of the emotional state in which he committed the crime, we may be punishing cognition, and therefore opinion or belief, and not merely raw emotion.

Posner has continuously supported his mantra “I do not think we should punish opinions, however repugnant we may find them.” Thus, the punishment he may impose on a protestor found to be influenced by emotion may be less than the individual who purposely commits the same action with complete malice.

Unfortunately, Posner’s court room is miles away from Baltimore. How he would adjudicate a case of a such a protestor is unknown.

For the Graduates: What Young (And Old) Lawyers Need to Know about Judges

With law school graduation coming across the country this month, we thought it only fit that we share the Great Posner’s wise words for any upcoming lawyer who will spend significant contact with a judge. However, we also want push against Posner’s advice because it appears to place an unfair burden on lawyers.  In What Young (and Old) Lawyers Need to Know About Judges, 43 The Colorado Layer 3, 75 (2014), Posner’s advice is clear: School Your Judge.

Posner first begins by acknowledging that the increasing complexity in both cases and legal doctrine has made communication between lawyers and judges difficult. However, he quickly moves on from this point probably to suggest that this increased complexity is a reality and not an excuse that justifies lack of communication. It is still the responsibility of a layer to communicate to a judge the facts and related legal doctrine of a case.

Quite humbly, Posner moves on to state that lawyers fail “to understand how little an appellate judge is likely to know about a specialized area of law.” He notes that appellate judges are generalist – while they know a fair amount about recurrent types of cases, their jurisdiction reaches far beyond these familiar types of cases, and as a result, many of the cases they hear are in areas of law they encounter infrequently. The same can be true for lower court judges.

Consequently, it is up to a legal advocate to educate the judge presiding over a case. If uneducated, a “judge is likely perforce to base decision on hunch, intuition, or (encompassing these and other decision guides) his or her ‘priors.'” The best way to educate a judge is through good communication, not only in legal documents such as briefs, but also through oral advocacy.

Posner notes that advocates should not fear educating judges and that judges in fact “are happy to be educated by the lawyers in the intricacies of a case.” Posner never shies away from a bold and controversial statement, so we can only wonder how much truth is attached to this proposition. Posner in fact seems to place more responsibility on lawyers. He notes that “lawyers must become more skilled in translating legal doctrine into common sense.”

He gives an example of the Supreme Court’s formulation of when to grant a preliminary injunction. He notes that the standard is not clear, so it is up to the advocate to clarify the standard for lower court judges. While lawyers no doubt have the obligation to simplify the law and educate judges, is it not the responsibility if judges as well to make the law simple? Why do judges set obscure standards for the rest of the legal profession to figure out?

Judges are presumed to be more knowledgeable about the law than the average lawyer. So why is Posner placing so much emphasis on the role of the lawyer in educating the judge? Even if the judge is a generalist, is it not up to the judge’s own clerks to educate him or her in the law? The only mistake Posner has made is to suggest that legal advocacy is limited to lawyers. Judges too participate in legal advocacy when they makes decisions. So while it is true that lawyers should communicate to and educate judges, a judge cannot dissolve him- or her- self of accountability in making the law simpler.

So, all new lawyers, follow Posner’s advice: educate your judges. However, if that does not work, do not fear because we have advice of our own: appeal your judges.

Posner on Same-Sex Marriage: Helpful or Hurtful?

Yesterday, the Supreme Court heard oral arguments on Obergefell v. Hodges, (a consolidation of four cases arrsing from four different states:   Obergefell v. Hodges from Ohio, Tanco v. Haslam from Tennessee, DeBoer v. Snyder from Michigan, and Bourke v. Beshear from Kentucky). The two issues the Supreme Court is faced to answer in this case are: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The Seventh Circuit was faced with the similar question in Baskin v. Bogan in 2014. Baskin addressed the refusal of the states of Indiana and Wisconsin to recognize the validity of same-sex marriages, whether they were contracted in these states or in states (or foreign countries) where they are lawful. Indiana and Wisconsin both argued that the prohibition on same sex marriage is to reduce accidental births. Writing the opinion of the court, the Great Posner quickly dismisses this argument and concludes:

The states’ concern with the problem of unwanted children is valid and important, but their solution is not “tailored” to the problem, because by denying marital rights to same-sex couples it reduces the incentive of such couples to adopt unwanted children and impairs the welfare of those children who are adopted by such couples. The states’ solution is thus, in the familiar terminology of constitutional discrimination law, “overinclusive.” It is also underinclusive, in allowing infertile heterosexual couples to marry, but not same-sex couples.

In the consolidated Supreme Court case, all four cases refer to Baskin for the proposition that courts have held same sex marriage bans as a violation of the Fourteenth Amendment. The four cases, however, do not focus on the welfare of children. For example, Obergefell argues that the state of Ohio must respect the marriages of same sex couples legally performed in other states for the purpose of listing surviving spouses on death certificates. Similarly, during oral arguments of Obergefell, there was a mention of children and their welfare, but “the welfare of American children” was not the focus as it was in the case of Baskin. The majority of the oral arguments focused on the institution of marriage itself and the dignity of individuals. The lack of focus on the welfare of children is actually a relief.

A focus on children in the issue of same-sex marriage could be detrimental. This is where Posner’s opinion in Baskin could be misconstrued.  Posner noted in the Baskin opinion “that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.” Would his opinion be different if homosexual couples did not adopt children?

The Baskin opinion should not stand for the proposition that the welfare of children is the determinate factor in deciding the issue of same sex marriage. The only reason it was the determinate factor in Baskin was because both states had justified their bans on same sex marriage on this factor. But as Posner noted, the cases were about “discrimination against the small homosexual minority in the United States.” This is the emphasis that consolidated cases have taken.

Posner and his Internet Swag

Reading opinions written by the great Posner are different from opinions of other judges for several reasons. He doesn’t cram ten ideas in one sentence with a flurry of Latin legal terms that do more to confuse you rather than provide a clear explanation of the case. He also throws in quick jabs at various actors in the dramatic play that is a legal case to keep you interested in whats going. But Posner does something else that is uncommon among judges. He cites the internet. Four recent of Posner’s opinions show his internet savviness:

• Brian T. Sullivan v. Michael R. Glenn, Jr., a bankruptcy decided on Apr. 2, 2015 includes 2 internet citations.
• Ramon Alvarado v. Corporate Cleaning Services, a civil case decided on Apr. 1, 2015 includes 2 internet citations.
• Kevin Voigt v. Carolyn Colvin, a civil case decided on Mar. 26, 2015 includes 4 internet citations.
• Joyce Hutchens v. Chicago Board of Education, a civil case decided on Mar. 24, 2015 includes 3 internet citations.

While other judges in the circuit do cite to documents that can be accessed online, they do not cite to internet sources themselves. Posner may simply be ahead of the game. While law libraries across the country begin to remove print materials and new databases and electronic sources emerge to improve legal research, it of course would be no time when legal documents began to cite internet sources. Posner may in fact be doing what he always advocates, which is making the law easy to understand and accessible to the average person. Not everyone has access to journals, treatises, and other academic materials often cited in legal documents. Given the vast growth of internet access, by citing to internet sources, Posner ensures that anyone reading his opinions can fully understand what each proposition means.

There is no doubt what Posner is doing is also dangerous. The problem with the internet is that anyone can write anything and have it published online – sort of like this blog. This means people can be relying on inaccurate information. This could be disastrous in court opinions which lay down the laws that govern the nation. So before any internet source is cited, legal advocates must be sure the source is reliable.

Either way, it appears the move is being made to using internet sources to supplement explanations in court opinions. We all have the responsibility to ensure the sources are used appropriately. And who knows…maybe soon enough we will be able to cite the source where every research project truly begins: Wikipedia.

Is Posner saying We Should Stick to a Minority Man?

We are sadden to say, that the great Judge Posner has recently confused us in a dissenting opinion in Bouras v. Holder. The case surrounded an undocumented Algerian immigrant who married an American women clearly of “northern European, not north African, ethnicity.” Unfortunately, the marriage ended in shambles and the Seventh Circuit was focused on determining whether the marriage was entered into in good faith. In passing Posner stated,

I wouldn’t expect a marriage between an Algerian immigrant who drives a cab in Chicago and an American woman (Jennifer’s maiden name is “Jones” and photographs of her, her children, and her sister—who submitted an affidavit on Bouras’s behalf—make plain that they are of northern European, not north African, ethnicity) who has a corporate job in another state to have the brightest prospects for success.

Posner was not suggesting the marriage was strained only due to racial and ethnic differences. He noted several additional factors that may have led to the not so blissful marriage: “The combination of a marriage between persons in different socio-economic classes and of different nationalities with the fact that one has children by a previous marriage and the other does not and that it’s a commuting marriage doesn’t augur well for marital stability.”

There is no doubt that these individual factors create challenges within a marriage. Furthermore, the existence of several of these factors within one marriage increases the possibility that it will end before seeing the Cotton Anniversary (for two years of being married to the same person, we want nothing more than cotton socks). But does that mean we should shy away from pursing an individual who needs substantially less sun tan lotion? Should we instantly be turned off if a man does not pull out a Gucci wallet when we are on a date? Should we focus our energy on a partner that balances time between us and their child’s student conferences?

Posner has been acclaimed mostly for his position on gay marriage. In his opinion in Baskin v. Bogan, Posner struck down the marriage equality bans in Indiana and Wisconsin. And from oral arguments in the case, where Posner parallels the Baskin case with Loving v. Virginia, it is clear he approves of interracial marriages as well. However, he has said little about the dynamics that make a marriage successful, whether it be a homosexual or heterosexual relationship.

So what is Posner trying to say? It’s true. Race does play a part in marriage. So does economic class, the number children of each partner, and where each partner lives (see 11 Couples and Singles Talk About Love and Class). We don’t think he is trying to insulate that we should all stick to our own “kind”. He simply makes a statement that, statistically speaking, individuals from different group categories have a hard time making a marriage work. This is not because they are too different to make it work. It simply may mean that society is not providing the means for such couples to flourish. So the question then becomes: How do we make a marriage between two individuals coming from different racial, ethnic, social, or economic class, have a bright prospects for success?

We Were Wrong – Tangka’s Denial

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asylum application, Grace Selfie Tangka

Well we were wrong! It appears that the 7th Circuit has denied to review the asylum application of Grace Selfie Tangka. Tangka’s application for asylum and withholding from removal was based on her fear of persecution because of religion (Christianity) and race (Chinese ethnicity).

The 7th Circuit’s denial provides a lot more information then what could be gathered from solely hearing the oral arguments. The Court notes that Tangka’s application largely rested on a single incident—the kidnapping of her American‐born, infant daughter from a shopping mall in Bogor, Indonesia while she was attending Christian worship services. Tangka testified that her husband received a phone call an hour after the kidnapping. The unidentified caller told Tangka’s husband not to call the police or look for their daughter. The caller also called them kafir, which means “people who don’t have God,” and said that they were not doing what they were told, a command that Tangka understood to mean that they should stop practicing Christianity.

The Court however, notes a few contradictions with Tangka’s application for asylum. After arriving to San Francisco with her daughter Britany, in support of her application, Tangka included: a statement from her husband that made no reference to the phone call he reportedly received after the kidnapping; a statement from her nephew, stating only that he found Britney with a man and a woman; a statement from her father saying simply that conditions are dangerous; and a statement from a friend who asserts, without having seen any of the events, that Britany was taken because of Tangka’s beliefs.

The fatal blow to Tangka’s application was the lack of sufficient evidence to show a sufficient nexus between the kidnapping and her Christian faith. The Court stated:

Substantial evidence supports the IJ’s determination that Tangka failed to establish a sufficient nexus. Setting to one side the phone call, about which the IJ found that Tangka had not testified credibly, Tangka’s only evidence of nexus is her viewing of Muslims in the vicinity before Britney’s kidnapping. Without any further evidence about the reasons behind the kidnapping or the identity of the kidnappers, the IJ did not err in rejecting Tangka’s speculation about the kidnappers’ motive. Moreover, Tangka misapprehends the significance of the IJ’s comment that she did not know the identity of her daughter’s kidnappers. An applicant need not know the identity of a kidnapper, but must still provide some evidence that goes to the persecutor’s motive. Cf. Gomes v. Gonzales, 473 F.3d 746, 755 (7th Cir. 2007) (identity of attackers not critical when eyewitnesses provided statements on perpetrators and their motive); Bace v. Ashcroft, 352 F.3d 1133, 1138 (7th Cir. 2003) (identity of attackers not critical when timing and attackers’ comments provided evidence of motive). Here, the IJ reasonably explained that he was, “looking for something that would tie the kidnapping to the respondent’s religion.”

The Court then goes on to discuss Tangka’s other challenges to the IJ’s finding.

So how could we be wrong? We are devoted to everything that is Posner! He should have urged the court to review the petition. Well as we noted in our blog post, Posner was leading the inquisition against Tangka’s attorney. He was especially fixated on what exactly occurred to Tangka that constituted persecution (the sufficient nexus argument). The oral argument barely touched on the remaining details the Court addresses in the denial to review. It is possible that Posner was trying to be a nice guy and give Tangka’s attorney a chance to articulate a sufficient nexus – the fundamental foundation of any asylum claim. Or he was simply just showing that regardless of all the other factors (as discussed in the denial for review), without the sufficient nexus, there was nothing the court could do. Regardless, we also have to note that Posner is one of several judges who reviewed the petition. Even if we were right on his position, it may have been a minority among the judges. We know for sure that Posner did not write this denial – his je ne sais quoi was lacking. However, we also know from oral arguments, he definitely shaped the final judgment.