Louisiana, which has the highest incarceration rate in the country, no longer provides public defenders to all its people accused of crimes; within months over half its public defender offices are expected to become insolvent.
“It’s a nightmare,” according to James Dixon, the chief Louisiana Public Defender. “You have people in jail that don’t have lawyers. It’s that basic.” In Louisiana, public defenders are appointed to represent nearly 250,000 people each year. Dixon has been warning of a constitutional crisis for years due to inadequate funding. His office has recently been sued in a federal class action by the ACLU.
The state public defender indicated that 24 of the 42 local public defender offices will become insolvent and restrict services in the next few months. Many already have broken down. Public defenders in 13 of Louisiana’s 42 judicial districts are already restricting services.
For example, the Lafayette Parish public defender has laid off 35 of its 52 attorneys, and imposed salary cuts of 20 percent on those who remain. The constitutional guarantee of speedy trial is gone and death penalty cases are grinding to a halt. The remaining public defenders face caseloads of 1000 felonies a year, a rate more than five times as high as recent Texas legislature mandated caseload study which concluded that public defenders should represent no more than 175 felonies a year.
New Orleans public defenders have been refusing to represent the most serious cases since January. The highly respected Marshall Project reports their budget has been cut from $9.5 million to $6 million in the past four years. That office, which represents 85 percent of those charged in criminal court, has already laid off lawyers, and cannot replaced the many lawyers who have resigned because of a hiring freeze. The office handles 10,000 misdemeanors and 8,000 felonies a year. One public defender wrote in the Washington Post that brand new lawyers have to handle cases with life sentences, carry double the number of cases that the American Bar Association recommends, do not have the time to even see their clients and are forced to plead people out to felony convictions on the day they meet them.
In an oped in the New York Times, the head of the Orleans Public Defender explained that Louisiana funds two-thirds of its public defender system with fines and fees from people convicted of traffic offenses and crimes.
Budgets for public defenders were small to begin with. In New Orleans, the budget of the public defender is less than half that of the prosecutor. The state spends somewhere around $3.5 billion on police, prosecutors, courts and jails, versus less than 2 percent of that on public defenders.
Cardozo Law Professor Ellen Yaroshefsky told a New Orleans court that the New Orleans public defender’s office was being run in an unethical manner. "I'm very troubled by the situation this public defender’s office is in," Yaroshefsky testified. "To call this a 'justice system' is really a misnomer. ... I believe this entire office is operating as a conflict of interest. The lawyers here are compromising some clients in other to represent others. They make a decision to triage, and triage is a conflict of interest. This is a problem now that is a judicial problem, and I believe needs to be dealt with on that level."
Meanwhile, Louisiana is facing a huge overall budget deficit of nearly a billion this year and double that next year due to fiscal problems left by departing Governor Bobby Jindal.
The meltdown of the Louisiana public defender system makes it criminal to call it a justice system.
“If you’ve got a clothespin handy, you should clip it to your nose. I’m now going to tell you about the 12-hour California Coastal Commission meeting I sat through Wednesday in Morro Bay. When the spectacle was over, members of one of the most powerful regulatory agencies in the country had racked up a number of accomplishments.
They fired their staff’s executive director, Charles Lester, who knows more about the 40-year-old voter-approved Coastal Act that protects our 1,100-mile shoreline than anyone in the world.
They devastated and demoralized the agency staff, so much so that some employees wept when the firing was announced.
They infuriated a who’s who of California’s longest-serving stewards of coastal preservation and access, along with hordes of public officials, current and former Coastal Commission staff, and former commissioners and citizens who had traveled from up and down the coast to speak glowingly of Lester’s integrity and diligence.
They accused the media of building a bogus narrative about why Lester’s job was in jeopardy, falsely insisting they were not at liberty to discuss their complaints about his performance in public.
And they spoke of their commitment to accountability and transparency, then refused to conduct their business in public, retreated into privacy, papered over the window and dropped the guillotine on Lester in a 7-5 vote.
‘Disgraceful,’ Susan Jordan of the California Coastal Protection Network told me, even as staffers sobbed and embraced a stricken Lester.” [….] Please read the remainder of the article by the smart and indefatigable Steve Lopez for the LA Times here.
* * *
What follows is intended to help us see precisely why the recent California Coastal Commission meeting made a complete mockery and mess of representative democracy, at least in the Millian sense.
As Nadia Urbinati well explains, J.S. Mill (leaving aside the ‘other’ Mill of the East India Co. or the Irish Famine) argued that “the key feature of representative government is that it evaluates all governmental proposals and decisions and ensures that both the people’s decisions and political decisions, get public visibility” [emphasis added]. Indeed, opinion and consent formation, “not decision,” is the “defining feature of representative government, the former exemplified “in the mode of deliberation and the circular relation between institutions and citizens.”
Mill in fact had a keen appreciation of the necessity of democratic deliberation “because it is relevant to both the moral legitimacy of democratic decisions and the character of political action.” Concerning the former activity, its value is owing to the encouragement of citizens and representatives alike “to think of policymaking in terms of what can be publicly justified” [emphasis added]. And representative government generally in a democratic polity, referring both to those who are empowered to act in the public interest or for the common good in judicial, administrative and regulatory bodies and capacities, and legislative bodies, must adhere to the imperatives of “open government,” that is, the principle and practices of visibility and transparency, thereby ensuring at least the indirect participation of citizens in the political order. Such participation allows citizens to make meaningful the notions of consent and dissent, as well as enable them, as individuals (and ‘standing’ participants), to make informed political judgments: “the activity of standing participants (the electors) in a representative democracy is wholly mediated—not only in terms of speech—but along dimensions of time and space as well.” And the vote of standing citizens is both future-oriented: regarding promises and proposals of candidates, and retrospective: assessing the outcome of those they’ve elected to represent them.
Transparency and various rights and freedoms, like free speech and a free press are essential to the what Urbinati terms the deferred democratic dimension of the public realm (in contrast to the simultaneous character of decision making by actual representatives), a dimension that “makes it necessary to develop an articulated public sphere that can create symbolic simultaneity; citizens must feel as if they are standing, deliberating, and deciding simultaneously in the assembly.” This deferred assembly, as it were, is wholly reliant on various forms of civic participation by way of supplementing and monitoring the organs of government, including its bureaucratic and regulatory agencies. On this model, representation is on a continuum with participation, one in which the “space for political discussion beyond governmental institutions” is ever expanding, as “the people” are learning and honing the skills necessary to properly scrutinize political decisions. Civic participation and “monitoring,” in turn, are dependent on an “open government” in the Millian sense, such “visibility” serving “to impede the potential misuse of politics.”
 Nadia Urbinati, Mill on Democracy: From the Athenian Polis to Representative Government (Chicago, IL: University of Chicago Press, 2002): 69-75.
 Mill of course worked as a senior civil servant—colonial administrator—for the East India Company from 1823 until 1858 (when the Company was abolished in favor of direct rule by the British crown over India). For a somewhat sympathetic discussion of his tenure with the East India Company, see chapters 16, “Utilitarianism and Bureaucracy: The Views of J.S. Mill,” and 18, “Bureaucracy, Democracy, Liberty: Some Unanswered Question in Mill’s Politics,” in Alan Ryan’s marvelous volume, The Making of Modern Liberalism (Princeton, NJ: Princeton University Press, 2012). On the historical and ideological context and character of Mill’s work as “the most sophisticated advocate of the ideology of empire,” please see, in no particular order, Raghavan Iyer’s Utilitarianism and All That: The Political Theory of British Imperialism (London: Chatto & Windus, 1960; reprint: Santa Barbara, CA: Institute of World Culture & Concord Grove Press, 1983); Thomas R. Metcalf, Ideologies of the Raj (Cambridge, UK: Cambridge University Press, 1995); Edward R. Said, Culture and Imperialism (New York: Alfred A. Knopf, 1993); Nick Robins, The Corporation that Changed the World (London: Pluto Press, 2nd ed., 2012); and Partha Chatterjee’s The Black Hole of Empire: History of a Global Practice of Power (Princeton, NJ: Princeton University Press, 2012).
On Mill’s response to the Irish Famine, see Henry Farrell’s recent post at Crooked Timber, “Millian Liberalism and the Irish Famine.”
The tale of this election is that those candidates who are running against the “Establishment” are doing very well. There is obviously something to this, but it obscures the actual workings of American politics. Just for starters, Hilary Clinton won Nevada on Saturday propelled by African-American and Latino voters. Those voters would be surprised to learn that they are part of the Establishment. And, of course, except for some of them, they are not.
What people mean by the Establishment refers variously to the Washington Establishment, the Business Establishment, and the Media Establishment or all three. What this “description” slides over is that none of these Establishments are monolithic. Is there anyone who thinks that Washington is monolithic? The Media? More interesting is the claim that Business is the establishment. On this theory, Donald Trump is a narcissistic member of the Establishment, and I believe he is precisely that. Bernie Sanders (and many others before him) argues that the system is rigged because of our broken system of campaign finance giving the wealthy and big business undue power in government. I wholeheartedly agree. On this undifferentiated analysis, however, the common good could never emerge from the political process unless the interests of business and the public were fully aligned.
In fact, the common good can more often emerge than that analysis allows because the interests of business insofar as most legislation is concerned are not homogeneous. For example, with respect to the environment, the Democrats can expect to get money from solar interests, but not from oil. The Democrats can expect to get money from those business interests who would have a lot to gain if we invested in the infrastructure of the country as we surely should. If the media were to responsibly report on American politics, they would report on what businesses give money to what candidates and parties and why it is in their interests to do so.
I do not think this reporting is a substitute for a system in which the wealthy and those in business have no disproportionate access to political power; but loose talk about the Establishment obscures attention to the actual workings of power in American political life.
Elizabeth Catlett’s Homage to Black Women Poets, 1984
My latest bibliography, in keeping with Black History Month, is here.
The Republican claim that nominations for the Supreme Court have not been approved during election years is simply false. President Reagan’s nomination of Justice Anthony Kennedy was approved by a Democratic Senate in 1988. Mitch McConnell and Charles Grassley were among those who voted for Kennedy. It is not clear whether Republicans like Ted Cruz have forgotten or are lying.
Justice Scalia has rightly been described as an influential Justice, but the nature of that influence needs to be put into perspective, and the desirability of that influence needs to be questioned. Recent commentary mentions Justice Scalia’s influence in advocating for originalism, a theory of constitutional interpretation that would honor the original text of the Constitution and its meaning as understood at the time of the text’s adoption. There is no question that Scalia had a substantial effect on the debate in the academy regarding the proper mode of constitutional interpretation. He did not initiate the debate. His intervention was preceded among other things by the writing of Raoul Berger and the pressing of originalism by Edwin Meese, the Attorney General in the Reagan Justice Department. Nonetheless, Scalia was a great writer and rhetorician. His advocacy had a profound effect on law students and legal scholarship.
But his influence on the Court is more difficult to assess. Of the eight other Justices on the Supreme Court, only one is an originalist, though all of them believe the original meaning of the text is one source of constitutional interpretation alongside many others. Justice Thomas is an originalist, but not a Scalia convert. Many argued in many of the original years of Justice Thomas’ tenure on the Court that he was a lap dog of Justice Scalia. But emerging evidence shows that Justice Thomas had more influence on Scalia than the other way around. He wrote drafts of opinions that outflanked Scalia on the right, and Scalia often reconsidered his view and joined a Thomas opinion. It would be surprising if Scalia’s advocacy did not shape opinions of the conservative justices. Yet one has to wonder whether Scalia’s influence on this score was limited by the well-known nastiness of his dissents. There are reports of his being liked by Justices Ginsburg and Kagan, but other reports about negative reactions to the acid character of some of his dissents.
Beyond his influence, the sagacity of Justice Scalia’s originalism deserves to be questioned. On his theory, what deserves to be preserved is the likely specific application of a text at the time of its adoption. So in interpreting the equal protection clause, the question for Justice Scalia was how the clause would be applied at the time of its adoption, not the general principle of equal protection. On this understanding, as has been much discussed, Brown v. Board of Education was wrongly decided. On originalist principles, it would still be constitutional to racially segregate the schools. In response to this, Scalia said he was a “faint hearted” originalist, was not a “nut,” and would follow precedent. Later he regretted saying that he was a “faint hearted” originalist. Nonetheless, whether he backed off the theory (when the results were obviously unacceptable) or not, originalism is deeply flawed. Under that theory, not only could government segregate the schools, government could refuse to hire women on the ground that their proper place is in the home, and free speech could generally be limited because it was “dangerous or offensive.” It is extremely doubtful that the Framers thought originalism should be the exclusive mode of interpreting the Constitution and even if they so thought, one would wonder why we would interpret the meanings of concepts like liberty and equality through the eyes of 18th century white male agrarian slave holders.
Finally, it needs to be said that Justice Scalia did not follow originalist dictates when it suited his conservative philosophy. He claimed that the Constitution opposed affirmative action; he twisted the Civil War amendments to limit their force; he urged many interpretations that would strengthen the hand of the Republican Party without evidence of the original understanding. Most seriously, he voted to determine the outcome of the Presidential election in Bush v. Gore. When he was routinely criticized for this, he said “get over it.” That is a response, but it is not an argument. It reflected an arrogant assumption of power that no lapse of time or attempt to silence should cause us to forget.
There's an old saying: "Never wrestle with a pig. You both get all dirty, and the pig likes it."
The Republican debate of February 13 broke that rule. The candidates mud-wrestled all evening long, and the results were grim. Indeed, the debate only confirmed my belief that the nominating contest is fast devolving into a race between Donald Trump and Ted Cruz. The Establishment candidates meanwhile -- Jeb Bush, John Kasich, Marco Rubio -- did themselves no favors.
Let's first perform an autopsy and then assess where the contest goes from there. We must start with Trump. Regrettably, John Dickerson and his co-panelists decided to address the opening question of most of the rounds to Trump. He was asked the first question about filling the Supreme Court vacancy created by the death of Justice Antonin Scalia. He was next asked the first question on foreign policy. The same pattern held true in the third round, which concerned "money."
Dickerson may or may not have intended it, but he and his co-panelists created an atmosphere in which Trump and his answers helped to frame not only the night's agenda, but the issues that will be on voters' minds in South Carolina next weekend. The questioning, in other words, served to frame the contest as a referendum on Trump and Trumpism.
So, what is on the table if the primary becomes a referendum on Trumpism? First there is the Trump style -- bellicose, demagogic, and bombastic. He seethed, he raged, he taunted his fellow candidates and denounced them as "liars."
The audience played along with the show. This the audience should not have done. They booed, they jeered, they catcalled, they behaved like it was ringside at some professional wrestling venue. I half-expected a chair to come flying from one of the balconies. The entire spectacle lacked the decency or decorum demanded of a presidential election.
But there is more to Trumpism than his obnoxious style. There are also his issues. Trump is right to want to protect Social Security benefits. American senior citizens are facing mounting financial difficulties. They have steep levels of mortgage debt, auto debt, and even student-loan debt, some of which is surely the result of co-signing on their children's or grand-children's borrowing. Seniors worked for their Social Security benefits, they earned their benefits, and those benefits should remain untouched.
Trump is also partly-right in his defense of workers' rights. He expressed his sympathies for the 1,400 workers laid off by Carrier Corporation in its recent decision to relocate manufacturing facilities. And, truly, displaced workers need our sympathy and support.
Trump, however, is absolutely wrong to oppose international trade. Rather, we must ensure that future trade agreements make generous provisions for the rights of labor. International trade should become a means of growing the world's standard of living, and that is done by lifting workers up.
But even if Trump is right on Social Security and half-right on workers' rights, he is an utterly unworthy representative of these causes. His racism, his xenophobia, and his obvious emotional instability all disqualify him from elective office. Seniors and workers must avoid the siren song that is Trump.
And this gets us to the heart of Trumpism, which is nativism and xenophobia. Shall we be a welcoming nation? Shall we regard the newcomers in our midst as equally worthy of respect with those whose families have been here for centuries? Trumpism rejects an open and welcoming view of the world, and Trumpism must be repudiated on those grounds.
Unfortunately, the principal alternative to Trumpism, at least within the Republican Party, is also unacceptable. Ted Cruz is rapidly positioning himself as Trump's only viable opponent. Cruz has strong credentials as a lawyer. He is a former Supreme Court clerk and former Solicitor General of the State of Texas. Even before the death of Justice Scalia, he had made the future composition of the Supreme Court a major focus of his campaign.
The sudden death of Justice Scalia now allows Cruz to exploit this particular strength. At least where Republican primary voters are concerned, Cruz carries a certain degree of credibility on judicial matters and he will now stress that part of his resume even more forcefully. He will make the Supreme Court the centerpiece of his candidacy and by extension seek and gain the increasing support of social conservatives.
Like Trump, however, Cruz lacks the capacity and temperament to serve as president. He has few supporters among Republican office-holders and is an extremist on matters like church and state and in his opposition to gay marriage. In his brief Senate career, he systematically sabotaged Congress and prevented action on important legislation, all in a ruthless quest for self-advancement. With this track record, it is hard to see how he governs as president.
The candidates fought intensely over George W. Bush's decision to invade Iraq in 2003. In the end, I don't think this argument greatly influences the outcome of the primary in South Carolina or elsewhere. Aside from ISIS and terrorism, Republican voters are not thinking deeply about foreign policy.
We must remember what is moving the voting public this election cycle. It is commonly described as "anger," and there is certainly a great deal of anger in the air. But behind the anger, there is also despair. Many people really have seen their lives move backwards since the Great Recession -- whether because of lost jobs, or lost benefits, or because of the heartbreak one feels when one's children have it worse than you did. These voters are simply not excited by appeals over who was right or wrong about September 11. They want to know who will make their lives better. And it is this despair that is being cynically and tragically manipulated and exploited by this field of candidates.
The Establishment candidates did a poor job of explaining why they should be elected president. Jeb Bush stood up for his family. He praised his father, he defended his brother, and announced that he "won the lottery" with his mother. In all of this, he sounded like a tin-eared successor to the Habsburgs or the Romanovs, only less intellectually curious and more reactionary. John Kasich came across as decent and well-intentioned, but in over his head. Marco Rubio was, well, himself, all striving, no substance.
To describe this moment in the GOP contest, I must resort to the Greek literature I studied in college. There is Aristophanes, the comic writer, and there is Sophocles, the tragedian. Truly, this contest is veering between these two extremes. On the one hand, there is a dark, absurdist quality hanging over this field. "Cloud Cuckoo Land" was the imaginary republic Aristophanes dreamed up as his plot device in The Birds, and you can close your eyes and imagine anyone of these candidates reigning gloriously in that comic-opera land of myth and make-believe.
Still, beneath the humor lies unspeakable tragedy. This nominating contest is proving to be the final denouement of the fates and frenzies that were set in motion a half-century ago when Barry Goldwater and Richard Nixon implemented their infamous southern strategy. They unleashed the hellish hounds of racism and resentment that is now tearing apart the right wing.
Cruz or Trump -- one of these men is likely to emerge as the standard bearer of what was formerly one of America's two great political parties. And the American Republic will be the poorer for it.
“Law on the margins is so joyful. You are connecting with people!”
Chaumtoli Huq is Bangladeshi-American Muslim human rights lawyer. She describes herself as a community centered, social movement lawyer. Now teaching at Brooklyn Law, her social justice legal career has focused on civil and human rights, especially workplace justice issues assisting organizations for immigrants. She served briefly as general counsel for the Public Advocate of New York until 2014 when she involuntarily became famous as a victim in a high profile police brutality case. More about that later.
Today her passion is an innovative social media platform called Law@theMargins, a collaborative space for organizers, academics and lawyers to reflect and share information on their work. Recent topics being discussed on the site include: Movement Lawyering; Advocating for the Rights of Indigenous Women; Reflections on Islam, Spirituality and Justice; Immigration Consequences of Low Level Criminal Offenses; and trends in Native American Law and Organizing. “I write for and curate this blog to highlight the ways our laws and legal institutions expand or limit the rights and social justice aspirations of people and communities,” said Huq.
Huq also teaches part-time and works other part-time jobs to generate income. “I jokingly say I am a Hustler for Justice. You got to take care of your family and be part of this movement, and as working class people you have to hustle to afford to do that. I am lucky that I get the support of my mother, who retired from her job with a pension, but not everyone has that support system.”
Huq is fortunate to even be alive. When she was born, her family lived in an apartment building in Dhaka in the middle of the war being fought over the independence of Bangladesh from Pakistan. When she was a few weeks old, their building was bombed. The ceiling over her crib collapsed while she was in it. Only because her uncles were able to burrow her out from under the concrete was she able to survive. “That informs my view of life and my thinking about the work I do,” she says. “I am here on rent. Life is a gift.”
After Bangladesh became too dangerous, her family moved to the Bronx. There Huq was raised by her mom as a single parent because her father, an activist, returned to Bangladesh. Mom was a lab technician and a member of local 1199 of the Service Employees International Union. “My interest in immigrant labor issues speaks to my own experience growing up as a working class immigrant, and observing my mother struggling to raise her kids. I know that this work is hard and entails many sacrifices by many people. My own migration story shows that labor issues cannot be disconnected from political and democratic movements as well as other liberation movements.”
“As a young person, Angela Davis was pivotal to my political and personal consciousness when I read her book Women Race and Class. Later, I was inspired by the writing of bell hooks especially her work on marginality which is the inspiration for Law@theMargins. I am moved by Arundhati Roy because she unapologetically uses her platform towards shifting our focus and gaze towards those society often ignores.”
Becoming a Lawyer
Huq first began to think of becoming a lawyer after college while working as a Program Coordinator for SAKHI, an immigrant women’s organization for South Asian Women. “At Sakhi, I coordinated immigration trainings for our volunteer advocates and developed support groups. I felt it was really important for women to have a space to talk, share and support each other as they traversed the challenge of abuse.”
“I noticed that many of the fierce and amazing people on Sakhi’s Board were lawyers. Not until then did I even imagine that I could be a lawyer.”
She attended Northeastern Law School. “At the time I had skewed sense of law school. I thought I’d be meeting more fierce brown women like I had seen around me at SAKHI, but going to school was a very different experience.
“Northeastern was the best place for me to be. But from day one I found it very alienating. My main issue was in terms of class. There are a lot of assumptions about Asian Americans. People think all south Asians are doctors, but I came from a working class background. I did not really fit in with upper income Asians or other people of color. I didn’t feel like it was the place to be.
“For example, in my third year I had a financial shortfall in tuition and went to a white woman counsellor. She told me to charge it on my credit card! I told her you have no idea who I am, my mom just lost her job, who do you think I am? I was so shocked. Fortunately, others at the school heard about my problems and managed to help me.
“On other hand my criminal law prof assured me several times “You have every right to be here.” That really meant a lot to me. Our dean was also phenomenal. Gentle spirit. He made a huge difference. Many of my deepest friendships are still from law school.
“In fact, I almost did not finish law school. In the summer after my second year I was doing labor organizing in Alabama as part of a UNITE union summer experience. They were trying to organize a food processing factory in Lafayette, Alabama and the workforce was white, black and Laotian.
“I had studied labor law. I knew all about captive audiences and the like, but here I was actually seeing how this was in practice. I lived in a cheap hotel and visited the Asian families in the evening in their homes. Organizing in the south Asian community is culturally different than other communities. We are dinner with people. We visited with people. We did not talk union organizing but built relationships.
“The work was so meaningful I decided to drop out of law school and stay on as an organizer.
“When the organizers found out I was dropping out they demanded I go back. They said “you need to haul your ass back up there and get your degree. We need people like you. Lawyers who are able to support organizing are rare but so very important!” So I dragged myself back up to Northeastern and I am thankful they made me do it.
After graduation, her first job was for two years as a law clerk and staff attorney with the US Court of Appeals for the Third Circuit in Philadelphia. “This was a great experience. I began to understand about how decisions are made and made me understand how the other side frames cases and I also learned about the limitations of appeals. The public service dimension I enjoyed the most was that once a week it was my job to answer calls from prisoners about their pro se appeals. I encourage people to consider clerking or becoming court staff attorneys after they leave law school. I learned a lot.
“After that, I wanted to return to my work on immigrant working class community, the work I did with SAKHI and in UNITE summer in Alabama and the great work that the National Day Laborer Organizing Network was doing. I had no money so I needed to figure out a way to create something that would allow me to do that work.”
“My whole approach to work, then and now, is I need to do this work, how do I find the money to do it.” She ended up partnering with the Asian American Legal Defense and Educational Fund (AALDF) and applied for a Skadden Fellowship to provide legal services to low income immigrant workers and domestic workers.
“Fellowships are very competitive and a lot of work. My advice to law students and young lawyers is that you should not pursue these for the prestige of a fellowship, but as an opportunity to do the work you are passionate about. You should ask yourself, is going after this going to get you to the work you really want to do? If so, go ahead and put the time and effort into it.
“I was fortunate enough to receive a two year grant from Skadden which paid well and gave me health insurance. This allowed me to start the South Asian Workers’ Rights Project with AALDEF in New York. I filed suits for everyone from domestic workers of diplomats to construction workers. We worked with taxi drivers, day laborers, Sikh construction workers and Bangladeshi Coney Island laborers. I also co-authored the first Rights Begin at Home: Protecting Yourself as a Domestic Worker in 2001. It has been updated and is still a great resource for domestic workers and their advocates.
In 2000, Huq and AALDEF filed a high profile federal action for Shamela Begum, a Bangladeshi immigrant who was working as a maid for a high-ranking United Nations diplomat claiming she was kept a virtual prisoner for nine months. She was forced to work seven days a week at low pay which was kept from her. Ms. Begum heard a fruit vendor speaking in her native Bengali and the next time her employer left her alone she escaped. The case was ultimately settled but the publicity from the case highlighted the plight of hundreds of other migrant domestic workers.
“There were about 40,000 taxi drivers in New York then. Half the drivers were south Asian, many were Haitian; it has always been a multiracial group. I started working with them right after September 11, 2001. The FBI was on all them and the drivers wanted to know what rights they had and whether they should talk to them or not. They were in financial trouble too. Income from lower Manhattan, which was a huge part of their work, was way down because of the closures. I worked with drivers to understand FEMA and helped organize and mobilize drivers to give testimony and educate FEMA and others why taxi drivers should qualify for FEMA.
“I helped the drivers fight for due process rights when complaints were lodged against them. Prior to that they could be automatically suspended for complaints and then had to wait for hearings to petition for reinstatement. We developed a multipronged strategy with educational campaign, organizing and litigation. We won pre-suspension due process rights for the taxi drivers in federal court.
“When my OSI grant ran out, the taxi drivers offered to fundraise to help pay for me to stay on, but I told them it was more important for them to hire a full-time organizer than a lawyer.
“When I was trying to decide what to do next, I saw MFY Legal Services, an outgrowth of Mobilizing for Youth, as the main organization doing legal work on workplace justice issues. When I joined them we did wage and hour, overtime cases and the like. There was so much work we could not bring them all to court. So we started doing pro se training sessions for workers so they could do their own cases in Small Claims Court. I helped write a manual for them, Making the Small Claims Court Work for New York City Workers in 2006. We also started really advocating against repeat offenders with the Department of Labor. We worked with community organizations which decided to picket some of the worst employers as well.
“We saw the need for a re-entry program for people who were denied occupational licenses by state based on prior criminal record. So I looked at what industries could be improved with legal intervention and we picked security guards since they were better paying jobs – predominately African American 80% male. Another area was low-level government positions – e.g. nurses’ aides were good jobs but blocked by criminal records – and we brought a couple of cases challenging agency decisions. We also worked with the program of federal funds to public housing, section 3, which urges the housing authorities to hire residents. We found that mostly our women clients were interested in those jobs. Some who started were terminated from a job after fighting and then were barred from any other jobs. We challenged this as due process violations. All our cases were about helping people get jobs or get access to better jobs. I also did unemployment cases, which were quicker and helpful.
“I stayed at MFY for three years and I really liked this work. Even now I expect to come back to this work as racial justice issues.
For the next several years she worked with Manhattan Legal Services as Director of Litigation. While there she had the opportunity to do some innovative lawyering in support of organizational advocacy with hundreds of tenants against an abusive landlord based in the UK, and consumer litigation.
During this time, Huq also taught at New York Law School. She taught first year classes involving lawyering skills and supervised judicial externships.
Profiled and Arrested
In 2014, Huq went to work as General Counsel for Litigation for the New York City Public Advocate.
This is where she was working when she became famous on July 19, 2014, when she was wrongfully assaulted and arrested and assaulted by NYPD. And in becoming famous, she lost her job.
On July 19, 2014 there was a pro-Palestinian rally in Times Square. Huq attended along with her husband and her two children ages 10 and 6. Huq joined the rally dressed in traditional South Asian tunic and pants. After walking away from the rally, she was waiting on the sidewalk outside a restaurant where her husband and children had gone to use the bathroom.
NYPD officers on the scene began to harass her and told her to move along. She stepped back from the main sidewalk and told the officers she was just waiting for her family. She was abruptly grabbed by one large NYPD officer, spun around and slammed up against the wall. One officer pushed himself in a full body press onto her, pinning her against the wall while another twisted her arms upwards and tightly handcuffed her with plastic flex cuffs. They arrested her and charged her with obstruction of the police, disorderly conduct and resisting arrest. When she asked what they were doing, the police told her “SHUT YOUR MOUTH” and “YOU’RE MY PRISONER.” When they learned she had a different surname than her husband, they told her “IN AMERICA, WIVES TAKE THE NAMES OF THEIR HUSBANDS.” The police hauled her away and kept her in custody for nine hours.
Huq was certain she was targeted and arrested because she is Muslim and South Asian. She was now at the center of controversy both for being arrested and for participating in a pro-Palestinian rally.
As a high profile city employee many warned her not to go after the police. Some told her she would risk her job and embarrass the new administration if she sued. Many, including even her small son, thought that police would not approach her unless she did something to the police. Others told her not to sue because police brutality was not a natural issue for Asian American women and African American males had it much worse every day.
“At first I did not want to bring the case because I did not want to be the focus and source of debate and discussion. I was advisor counsel to the Public Advocate, I was on a path to bigger things. I was worried. Here I was the first Bangladeshi appointed to a big job, I was developing great contacts and a good reputation. I thought I should keep my head down and just take it and not bring an individual case highlighting Palestinian rights and a woman of color who does not get along and probably not hirable in high places again because you cannot just get along with the program.
Traumatized but unsure about what to do, it was her mother who made it clear. My mom read me the riot act – “you talk about rights but you won’t fight for your own rights?” she said it was hypocrisy and from a spiritual standpoint those things will work out. I said, you’re right. If I’m telling my clients to speak up and then something happens to me and I don’t stand up what does that say?
The assault occurred in July 2014. She filed suit in September 2014. She won the case with a settlement in August 2015. Though the City of New York dismissed the charges and paid her $37,500, the violation remains vivid and yet another source of passion for justice for Huq.
“There are financial consequences to speaking up. I lost my job. I now live with my mom. I earn less money. But it was definitely the right thing to do.
Huq is using a part of the settlement money to start a program on girls and policing. “I just did not accept the physical handling of my body by the officer. There is a picture of the officer pushing his body against me against a wall. See Young girls brutalized by the police respond differently from young boys. For girls this is more like sexual assault victims. I cannot imagine a high schooler experiencing what I did without support. This is not just racism and Islamophobia like everyone thought - it is also a gendered physical experience. But few recognized that and I think we don’t have a language to talk about that.
“Also because I am thought of as an activist people thought I should have been tougher. Some said “It’s good it happened to you as opposed as to someone else who is not so strong.” But that does not give each of us permission to be human. There is an expectation that you as lawyer should not experience it like a regular victim. I think we have to allow people to be both lawyer and person who is harmed. Other people said I was just acting like a diva, focusing attention on myself and not the black and Latino community. But I am a member of the community and this is an important issue.
“If I did not speak up and fight back, my mom would have been right. I accept the consequences of standing up and fighting back. The best I can do is make decisions that are aligned with my beliefs. My decision was aligned with what I most care about and am most passionate about. So I will accept the consequences. I am living consistent with my beliefs. I feel whole.
Return to Bangladesh
Long before she was arrested Huq and her family planned to take a nine month leave from her job with the Public Advocate for a trip to Bangladesh on a small fellowship. Huq went to investigate the situation for garment workers after more than a thousand were killed and another two thousand were seriously injured in the 2013 collapse of the building in Rana Plaza Bangladesh. Two labor agreements were later enacted to protect the workers. One was for European brands. Another was for US brands.
Huq reached out to the American Institute for Bangladesh Studies, which usually funds graduate student study, to sponsor her to go to Bangladesh to do an independent review of what was the situation for the garment workers. They gave her a modest stipend and she and her husband and children went. "My husband and I decided it was now or never to visit my homeland.
“I interviewed stakeholders, factory owners, and brand sources from Bangladesh, workers, advocates, and policy makers. My main question was what is the condition of labor movement? I wrote 10 op-eds in main English paper there. Embassy folks and garment owners read the Daily Star so I wrote for them in hope to change their mindset. One European embassy person reached out confidentially reached out and said keep writing you are helping – but we cannot say so publicly, we will tell you privately.
“It was hard work and very challenging. I did video and audio recording interviews. I felt bad for a while because it felt very extractive. So I asked the workers I was interviewing what I could do for them. They said, “Sister tell our story.” The organizers said “Put it together in some fashion.”
“Now I am working on a short documentary with my interviews. I have 5 minute short version of “workers voices” in English. This is up on the Law at the Margins website. I am working on 40 minute version. It is taking much longer than I hoped and it is well outside my comfort zone as I know nothing about film. But I told them I would try so I am in it!
“Now I am back in New York. I feel good. I have less money but I have Law at the Margins, and some adjunct work. Some suggest I should do something else to get a bigger platform. They are all well-meaning folks, but I don’t know how that means they view my choices. It is hard. I have all those things that come with being 15 years away from graduating from law school, career, politics and tension. But I think I am doing the right thing at this point in my life.
Life as a Social Justice Lawyer
“I have had an unusual career as a lawyer. I have done lots of different jobs but always in service of organizations. I never looked at jobs on their own. Instead I looked at whether the job provided an opportunity to work with coalitions as legal support. I always wanted to be a social movement lawyer. If you want to be a movement lawyer you have to always work with organizations.
“I am inspired by regular folks who I grew up with who struggle daily to live a life with dignity. The first person I observed to do this is my mother. I am inspired by folks who I have had the privilege to serve as their counsel. Basically, I gravitate towards free spirits, who are genuinely committed to social change and who do not care about how they are perceived by society.
Huq is clear how social change comes about. “Change comes about through relationship and community building, by mass based organizing supported by sophisticated strategies, and by resources that transform our systems of power. I play one piece in this movement building work. An organizer I deeply respect told me the key to building community power is for the advocate to ask themselves who I am serving. I have adapted that into law. I have to have that clarity in how I am using my legal skills.
Challenges of Social Justice Lawyering
“Social justice work has become professionalized, especially among lawyers, and it is sometimes more of a career or a resume builder or a popularity contest, than a focus on the work. But this is not fault of dedicated advocates. Often, we have to do some things that appeal to mainstream decision makers in order to do the work we want to do. That can be exhausting.
“As lawyers, we are constantly navigating and negotiating with and within a system that is oppressive to communities we care about, but we engage with this system in the hope to open up some possibilities for change, and to create the conditions for future transformation to emerge.
“But sometimes, I wish we considered more often withdrawal from the system as well or a refuse to participate. This is something I learned from our labor history. We tend to be more conciliatory and accommodating, at the expense of poor and working class people who struggle and suffer daily. When we compromise as lawyers, we forget that it is communities that bear the brunt of that compromise not us. We need to make decisions that hold us accountable to them and create infrastructure and mechanisms of accountability. It may be that our client communities are ready to accept some middle ground, but we can’t decide that for them. All this makes it very hard to live a mission-aligned and principled life around social justice.
Muslim Woman of Color
“As a woman of color, I have had to deal with people who for whatever reasons are threatened by a person who is comfortable and confident in her own person, and clear on her commitment to social justice. I am unapologetic in my demand to be treated with respect and dignity, and in my insistence that poor and working class communities be treated with respect.
“Because I do not present as the stereotype of a woman of color, I find it makes folks uncomfortable. I have heard I am intimidating. As a result I have been excluded from certain spaces and have stood alone on some issues. But, a brilliant organizer friend said to me early on, a good organizer knows her base, she has clarity on who she is fighting for. So while I am excluded from some select spaces, I find my love, joy and home in communities in which I was raised, and for whom, with whom I struggle. That sustains me.
“Growing up in a Muslim household all of my social justice values are completely based in Islam. Zakat, one of the five pillars of Islam, calls us to give a portion of our wealth. We are not to be accumulating wealth. We are not to be making profit over someone else’s labor. We can make a living, but there should be no vast disparity. Fasting in Islam, as in all Abrahamic religions, is a part of our tradition.
“When I worked in SAKHI, before 9-11, we went to Islamic centers. If you said you wanted to go to a mosque to do outreach for domestic violence and the rights of women many would object saying these communities are so sexist or they are not progressive, but we thought it important to reach out. I thought this is the community we are reaching out to. We ended up with shared principles of equality rather than excluding religious groups per se. If you care about communities, you have to go to where they are.
“We cannot let color obscure class issues either. Class alienation in law and as a lawyer is also a huge issue even among attorneys of color. Many do not understand how alienating the law is. We are often called to mask our true selves, and this often has less to do with you as an immigrant or racial minority and more to do with class.
Sustaining a Life as Social Justice Lawyer
“Honestly, for many years, I did not care for myself and prioritized the needs of others over mine. But since I have been with my partner and have had children, life has become different. I have been making more efforts to care for myself because I need to be well for my kids. I had a parent who was absent because of his activist work, and so, I think about what kind of relationship I want to build with my children and family.
“Work life balance? There is no balance, it is balancing chaos. Those of us with families and kids have continuously challenging transitions. Many of us struggle with the transition from being single and fully engaged and involved going to community meetings and litigating to being a mom and family member. Now I am more comfortable with being an activist and being a mom both but when I first had children I feared I would no longer be able to be a community advocate.
Finances continue to be a challenge for her and her family. “This is a big challenge and stress. Both my husband and I work in the nonprofit sector, and our income from those positions support us. We both come from families that did not have a lot of money, so there isn’t a safety net or trust fund to fall back on. But our families are generous and loving and support us wholeheartedly, not always financially but emotionally, allowing us to do the work we believe in. Like now, we are staying with my mom with our kids, and we would not be able to do our social justice work, if we didn’t have a place to stay, and lovingly prepared food or an occasional caregiver called grandmother. This is the beauty of working class communities. When I met my mother-in-law, who is Dominican American, she was so happy that I was helping low wage taxi drivers, many who are Dominican. She is proud of the work we do, and that means a lot.
“It is important to have someone to share this with. A friend of color got a fellowship in social justice, and was asked by a group what was the best decision she made in her life? She responded that it was to marry her social justice partner. Her answer offended some white feminists who do not have the same need to be in a loving healthy relationship. But it was true for her and it is true for me. Social justice means different values and a different style of work including night meetings and you need a great partner who understands flexibility.
“My partner is from the Dominican Republic. His mother came to the US as a teenager. He was the first generation to go to college and graduate school. He works with first generation black and Latino students to help get them into college and works on retention as well. His work is transformational.
“I try to regularly give thanks or make a statement of gratitude. I try to have meals with my family. I periodically need periods of quiet time to reflect, reenergize. I enjoy “being” with friends, and am not one to enjoy being on the phone. I love music and dancing and enjoy both with my friends and family.
Challenge to Experienced Social Justice Advocates
The challenge she puts out to more experienced advocates? “People who are in leadership roles have privileges. It is extremely important for those in leadership roles to bring others along and open opportunities for those who are most marginalized by our system. My personal experiences around race and class make me particularly attuned to voices that are often left out. We have to bring our people along with us as we grow. I hope that my work reflects that. It is essential to open up opportunities for impacted people to take leadership in movements. I have noticed that many well-meaning advocates when they achieve a certain professional success do not always bring others along. They become “gate-keepers” rather than “game-changers” or “door openers.” This impedes leadership from communities who are most impacted by our legal system from taking a forefront role.
When asked if there is a book which she would recommend to other social justice advocates, Huq responded. “I would recommend Difficult Conversations. Over my years as an advocate, I have observed many personal conflicts, and I think if advocates read what underlies our conversations, we could address these conflicts, and deepen our relationships to make them much more meaningful. Oppression and structural violence creates trauma in our lives, and we don’t always have the best tools to protect, defend or heal ourselves when we are constantly fighting back. Meaningful, respectful relationships are the building blocks to a healthy social justice movement.
Advice to New Lawyers and Law Students
“Focus on a desire to work with people, not build a career. That organic intuitive approach has helped me and brought me enormous joy.
“Surround yourself with a community of people who believe and want to do as you do. Over the long run these are the people who will help sustain you. Friends who got your back, got you. Commitment to social justice is critical but so is personal support. For example, when I was arrested, I was very disappointed because a lot of progressive people and organizations did not come to help me out because I didn’t fit into their issue area or I was not their typical victim. Was it that I wasn’t seriously injured enough? Or that I fit in the perception of the typical victim? I do not know. It was ultimately the many non-political people who cared about me as a person, not the political people and organizations who supported me. That was a reminder that you must really know who your community is and feed those relationships.
“Social justice work is swimming upstream against the current. It is hard and it is your community of folks who are going to be your support system. Value relationships and people not where people can take you. Often our friends are discounted by others because they are not connected to the tentacles of power or not using the right vocabulary for justice. But we value each other as people and we value our relationships. You will know who they are. Because in the moments when the shit hits the fan, your real community will stand with you.
Asked to sum up her career a social justice lawyer so far, Huq responds. “How does this child born in Bangladesh during political conflict come to be in New York City and have the opportunity to work for social change? At many points of my life, my life’s trajectory could be drastically different. When I reflect on that, I am thankful. I pursued a law degree and worked on projects that moved me, where I could be helpful, and where I could learn something. I am thankful that this organic, intuitive approach has served me well in terms of my “career.” I was always focused on the lives of people, not to build my career, and it has brought me enormous joy.
Last week Chief Justice Roberts delivered a Law Day speech in which, according to the Washington Post, he complained that partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees. By players in the political process, Roberts does not mean that the Court’s decisions have no impact on the political process. Rather he means that the Court’s decisions are not made in the same fashion as legislators. Instead, he maintains that the Court often makes decisions that are contrary to their policy views. Though he did not say so, presumably his vote upholding the Affordable Care Act would be one such case. He surely would not have voted for the Act if he were in the legislature, but many things are within the power of the legislature, not just those that track the policy views of the Justices.
That said, if the Post report is to be credited, Roberts’ speech does not recognize that many, I would say most, constitutional decisions that arrive at the Court (and, for that matter, those that are litigated) hinge on policy judgments. To be sure, those policy judgments are considered along with considerations of language, history, precedent, and power (the Court’s institutional power may have been a key consideration in Roberts approach to the Affordable Care Act), but policy often is the dominant consideration influencing the interpretation or the weight given to the other factors. Think of affirmative action, abortion, whether members of a bargaining unit can be compelled financially to support a union, campaign finance, voting qualifications, compelled financial support for contraceptive insurance, business regulations, and rights of the accused. Is there any doubt that policy considerations (most of which divide conservative and liberals) have accounted for votes by the Justices in these and many other areas?
I don’t think there is room for doubt, and that makes Justice Roberts claim that justices are “referees” utterly inapt. Referees are impartial and, if they are not, they are corrupt. Justices cannot be impartial in the sense of referees. They are human beings, and their value system necessarily has an influence on the interpretation of the Constitution. Instead of supposing that Justices are referees, it is more accurate to suppose that Justices are players in the political process who are subject to certain customs and traditions that are different from, but overlap considerably with, those in the other political branches. The public perception of the Court should not be improved the kind of misleading characterizations advanced by the Chief Justice.