When our host posted Lessons From Fabian’s Viral Video, I was dumbstruck by the outpouring of hatred regarding Ms. Fabian.[i] See, e.g., Manny Fernandez, Lawyer Draws Outrage for Defending Lack of Toothbrushes in Border Detention, New York Times (June 25, 2019) (quoting Howard Dean, the former governor of Vermont and presidential candidate, stating that Fabian “needs to be fired and prevented from ever holding another government job.”)
Having had my ass kicked many a time while arguing before an appellate court, I decided I would take a deep dive into the record to see whether Fabian deserved the attacks. I read the Flores agreement, I read Judge Gee’s opinion in the District Court, and I read the briefs filed in the Ninth Circuit. I also read Ken White’s piece in the Atlantic. Additionally, I watched the entirety of the oral argument in the Ninth Circuit which lasted about an hour. Hell, I even read pieces about Fabian written by Joe Patrice at Above the Law.
For what it may be worth, let me give you my opinion. Ms. Fabian is not the Devil’s Advocate.
I wish to elaborate, albeit briefly. For example, let’s take Judge Tashima’s[ii] question of Ms. Fabian on the “toothbrush, toothpaste and soap” issue. After closely examining the foregoing sources, I am of the firm belief that Ms. Fabian had a good faith argument to make. Had she had time to make it (she was before a “hot” bench that was not shy about interrupting), her argument might have made five points:
1. The Flores agreement, particularly paragraph 12A, did not give the court authority to micro-manage the holding facilities. On the contrary, the broad language of Paragraph 12A of the agreement is fairly read to give the government the authority to fill in the gaps when it comes to the meaning of “safe and sanitary,” such as what specific items of personal hygiene must be provided and when.
2. From the evidence cited by the trial judge, the alleged deprivation of toothpaste, toothbrushes and soap was of short duration (2 or 3 days).
3. From the evidence cited by the trial judge, about 93% of the children in the relevant sector were transferred within 33 hours to the Ursula Centralized Processing Center. That fact was not disputed by plaintiffs.
4. From the evidence cited by the trial judge, at the Ursula facility it was the government’s practice to provide “a hygiene kit consisting of a towel, toothbrush, toothpaste, mouthwash, soap, and shampoo” together with “shirts, sweat pants, socks, and undergarments.” The detainees also had “an opportunity to shower, have their clothes laundered, and receive a change of new clothes.” The district court failed to give this evidence proper weight and instead credited a few counter examples. Even then, and strangely, the trial judge’s order regarding “safe and sanitary” seemed to focus mainly upon “non-CPC-Ursula CBP stations,” which apparently are short term holding facilities and which were not addressed in detail by the district judge.
5. The decision of the district judge was based upon affidavits and snippets of deposition testimony rather than live testimony. The appealed decision was a trial on the merits regarding breach of the agreement, yet no real trial was held. The district court, in violation of the Federal Rules of Evidence and the Federal Rules of Civil Procedure, deprived the government of the opportunity to cross-examine the plaintiffs, resulting in a record consisting mainly of unreliable hearsay. One example is illustrative: Several declarations contained indicia of unreliability on the face of them, such as the use of the exact same or very similar language by different people. Thus, the “toothbrush, toothpaste and soap” findings and other similar findings were “contrary to law” and “clearly erroneous.” In short, the method the trial judge set up to try the question of breach was both legally improper and factually unreliable. The judge’s decision not to give the government a real trial was both unfair and wrong.
Now, I am not suggesting that Fabian had a particularly strong argument. But she certainly had a good faith argument. In short, she had a job to do and she did it. Ms. Fabian is a real, rather than a faux, lawyer who represents unpopular clients with unpopular policies. While Fabian may not deserve praise for doing her job (lawyers seldom do), she does not deserve the calumny heaped upon her either, particularly by those idiots who base their opinions on a few seconds of video.
Richard G. Kopf
Senior United States District Judge
[i] Ms. Fabian was educated at Amherst and then took her law degree from George Washington. After working at the law firm of Kirkland & Ellis, she was hired by the Justice Department under the Obama administration and has been a government lawyer since at least 2009.
[ii] During World War II, the judge, when he was a child, was interned at the Poston War Relocation Center in Arizona, an internment camp for Japanese Americans.