Many 4-year-olds would be delighted to hear that they don’t have to take a bath, brush their teeth, or go to bed right now. Maybe Department of Justice attorney Sarah Fabian was aiming for that audience when she went viral arguing that Customs and Border Patrol could indefinitely incarcerate children seeking asylum without providing them the basics of human civilization.
If that was her strategy it failed when her court date was not with Tot Bench but instead a Ninth Circuit panel including Judge A. Wallace Tashima — who was actually sent to an internment camp as a child.
Instead, we all got to watch Fabian flail as she tried to explain why in “some circumstances” children can be locked up without basic needs.
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The argument — at its most charitable — is that the judges were asking if toiletries were *always* necessary and that short-term detainees might not need them if, perhaps, they weren’t staying overnight. But as Judge Fletcher snarkily points out, we’re not in the reality where they are getting “moved on to the Hilton hotel.” When Fabian tried to set out different categories that may not be included in “safe and sanitary,” Judge Berzon responded by exasperatedly asking, “Yes, but sleep surely does, right?”
She needed a panel of 4-year-olds and instead she got three 70+-year-old judges who have absolutely no patience for this s**t.
On the one hand, Fabian isn’t a political appointee, so she’s just the messenger here. On the other hand, she’s been defending the cruel and unusual treatment of children for years, having argued for throwing kids into solitary during the Obama administration and argued that she couldn’t expedite child reunification hearings because she needed to dog sit so she’s not exactly building her best case for the benefit of the doubt.
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While Fabian faced a good deal of criticism over the weekend, the most poignant may have come from Michael Scott Moore:
Somali pirates gave me toothpaste & soap. https://t.co/K8zCP3IVMm
— Michael Scott Moore (@MichaelSctMoore) June 22, 2019
“America: Not Quite As Good As Somali Pirates.” Doesn’t have the same ring of “E Pluribus Unum” but here we are.
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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.