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On SB 1070

by Roger Algase

Without detracting in any way from the analyses by Charles H. Kuck and Carl Shusterman about the long awaited and welcome demise of Arizona's deservedly hated racial profiling law, I believe that there is an element that has been left out in theirs and many other comments, which would explain the tenacity with which the law's supporters appear to be pursuing their Quixotic battle to its inevitable and bitter end. (Here, I have to apologize to Arizona Governor Brewer and Maricopa County Sheriff Arpaio for referring to such a prominent Spanish-speaking literary character. I hope they will not take offense.)

First, let us inject an ounce or two of reality. The Supreme Court is not going to vote 9-0 to overturn this law, though it should. Arizona will probably get at least two votes, Justices Scalia and Thomas. Look at the breakdown in the recent decision in Padilla v Kentucky dealing with the right to be advised about the deportation consequences of a criminal conviction. Arizona may even be hoping that these two ultra-"conservative" (radical) Justices might persuade the other three members of the right wing bloc to join them. Unlikely, based on the concurring opinion of Chief Justice Roberts and Justice Alito in Padilla. As I read their opinion, they were trying to be more liberal than the liberals in upholding the right to competent immigration counsel in criminal cases when possible deportation is an issue.

But if Arizona can get even two votes in the Supreme Court, that will give Fox News and countless other right wing propaganda outlets the chance to claim that Justices Scalia and Thomas are the only ones who really "understand the Constitution" "care about America", etc., etc. Even in the unlikely event that Arizona loses the entire Supreme Court, the point will still have been made: only extreme right wing Republicans of the Jan Brewer and Joe Arpaio ilk can be trusted to protect America against - you know whom. Just plug the right ethnic group into the right year: 1850- Irish; 1883- Chinese; 1917 - Italians; 1924 -Jews, 1942 -Japanese-Americans; 1968- Nixon "Southern Strategy"; 2010 - Quien sabe?

Why pretend that the Arizona law has any connection whatsoever with trying to solve an actual immigration problem, or that its backers have any motive at all except exploiting racial hate for political gain? We underestimate the success that they are achieving in pursuing this goal at our peril, whether they win or lose the battle over the Arizona law.

About The Author

Roger Algase, Esq., is a graduate of Harvard College and Harvard Law School. He has been practicing business immigration law in New York City for more than 20 years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.