Eight commuted sentences in a single day! Eight! According to Ruckman at Pardon Power, that's the most commutations any Pres has issued in a day since Nixon in December 1970. (Well, except for Clinton, but still.) Wow! And thirteen outright pardons for people who, as Charlie Savage in the Times points out, served brief if any time for mostly minor offenses and that well in the past.
All that moves him right up. His Barakness has now leaped ahead so that he's issued more grants of clemency of one sort or another than four (count 'em, 4!) of his predecessors.
More than William Henry Harrison in his one-month presidency!
More than Garfield in the four months before he was assassinated!
More than John Adams in his one term!
More than Washington did in two full terms when there were almost no federal crimes or prisoners!
What a guy!
But let's talk a moment about the commutations, because that's big. Those 8 folk were doing long terms (up to life) for crack cocaine offenses. Each of them has already done more than 15 years. Six were doing life. Under the Fair Sentencing Act which reduced (but didn't eliminate - let's get real here) the frankly racist dispartity in sentences between crack and powder cocaine offenses), they'd have done much shorter terms. In a statement issued by the White House, Obama said,
Commuting the sentences of these eight Americans is an important step
toward restoring fundamental ideals of justice and fairness. But it
must not be the last.
Of course, it needn't be. He could, for instance, do something for the other 8,800 or so folks in prison now (according to FAMM) who are doing mandatory minimum times sentences from before the Fair Sentencing Act reduced the disparity. I'm not holding my breath either. ------------------- The list of yesterdays commutations and pardons is here.
Back in the 1950s, Bob Hope used to tell this joke.
An American was in the Soviet Union explaining to a Russian citizen how we have the greatest country in the world.
"In America," he said, "anyone can get on a train, go to Washington, go up to the White House, and announce that President Eisenhower is a fool."
The Russian responded.
"It's no different here. Anyone can get on a train, go to Moscow, go up the the Kremlin, and announce that President Eisenhower is a fool."
I. Ohio
By the time I get around to posting this, Fred Treesh will be dead, killed by employees of the Ohio Department of Rehabilitation and Correction. (Ain't no rehabilitatin' for Fred, and any correctin' involved is in fixin' a mistake god made, but I digress.) Treesh was indicted by a grand jury in Lake County on a charge of aggravated murder with two death specifications, tried before a jury in the court of common pleas which found him guilty and said he should be killed. The judge agreed. Represented by appointed counsel, Treesh appealed the verdict and death sentence. He filed for and pursued post-conviction relief in Ohio's courts and habeas corpus relief in federal court. The Parole Board recommended that the governor deny clemency, and the governor did. It was, then, all nice and legal. And so, at 10 this morning, Fred Treesh will be strapped to a table at the Southern Ohio Correctional Facility (no pretense of rehabilitation there) and murdered. It is murder, specifically aggravated murder (Ohio's only capital offense). The crime is set out in section 2903.01(A) of the Ohio Revised Code. It's a duly enacted law, passed by both houses of the General Assembly, signed by the Governor.
No person shall purposely, and with prior calculation and design, cause
the death of another or the unlawful termination of another’s pregnancy.
No pregnancy involved here, but that's just an alternative. When they strap him down to a table, stick needles into him, and pump him with pentobarbital so he will die, that's purposely causing the death of another with prior calculation and design. It's all nice and proper, procedures followed: indictment, trial, appeals, court orders, gubernatorial authorization, the whole nine yeards. But murder it is. (The Nuremberg defense, "I was just following orders," is not an established part of Ohio's criminal jurisprudence.) Still, there's a procedure. Whatever you or I may think, the courts say it's fine. No tribunal has yet declared this version of Ohio's death penalty law unconstitutional or said that the death penalty generally is. Ohio is, of course, one of the 50 states. Some authorize murder, some don't. II. The United States
The federal government, too, has a death penalty law. Passed by both houses of Congress, signed by the President. There are, currently, 60 people on federal death row. Like Fred Treesh, they were indicted and charged and tried and duly sentenced and have had and are proceeding with appeals and habeas petitions and clemency requests and whatever. It is a safe bet that some number of them will, in time, be executed. We are, ostensibly, a nation that honors the Rule of Law. No one, we say, is above the law. This is the Fifth Amendment to the Constitution. It's the law of the land.
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indictment of a
Grand Jury, except in cases arising in the land or naval forces, or in
the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Notice that there's a part that reads, "nor shall any person . . . be deprived of life, liberty, or property, without due process of law." OK, we routinely stretch the point. See, for instance, what we did to José Padilla or what we're doing to Bradley Manning. Hell, see the whole fucking mess at Gitmo. But we have in those cases at least a pretense of process (though the courts needed to force it at Gitmo). Here's what we don't have. Virtually everyone agrees, Nixon was wrong. I'm no particular fan of Chief Justice Roberts, but when he's right, he's right. In United States v. Stevens,
he wrote the opinion for the not-quite unanimous Court (Alito alone
dissented) declaring that the statute making visual depictions of animal
cruelty a crime. Sure, he said, Clinton promised that the law would be
used wisely when he signed the legislation. So what.
Not to worry, the Government says: The Executive Branch construes §48 to
reach only “extreme” cruelty, Brief for United States 8, and it “neither
has brought nor will bring a prosecution for anything less,” Reply
Brief 6–7. The Government hits this theme hard, invoking its
prosecutorial discretion several times. See id., at 6–7, 10, and n. 6, 19, 22. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 473 (2001).
Of course, it's just a week since the Court decided Clapper v. Amnesty International USA holding that regardless of whether the federal program of wiretapping under Section 1888(a) of the Foreign Intelligence Surveillance Act is constitutional, nobody can go to court to challenge it. You have a right not to be subject to unconstitutional surveillance, but you have to trust the government's good sense and good will about it. Roberts signed off on the opinion. Still. That's just phone calls. This one, as they say, is murder. You may recall that when Obama ran for President in 2008 his campaign championed "Yes, we can." Who knew this is what he meant?
Any of you who read this blawg even fairly regularly know that I'm no fan of executions - whether they're effected under color of law or not. And I'm alternately saddened and angered by those who treat the death of anyone as cause for celebration. (See, for instance, remarks about Ted Bundy and Osama bin Laden.)
When Muammar Qadaffi was killed the other day, I commented on the rejoicing and noted with some distaste that President Obama
congratulated the Libyan people for triumphing over the dictator.
Obama had it wrong. The proper basis for congratulations was not the toppling of the dictator but the toppling of the dictatorship. The difference is substantial. As Mark Twain wrote in a letter to George Bainton,
The difference between the almost right word & the right word is really a large matter--it's the difference between the lightning bug and the lightning.
Indeed.
When President Kennedy was assassinated, Fidel Castro (and no, I'm not suggesting any equivalence here, we can talk about those issues another time) is reputed to have said,
Only a fool would rejoice at such a thing for systems, not men, are the enemy.
Once again. Indeed.
So I owe it to our President to acknowledge that he (albeit belatedly) seems to have got (or at least expressed) something of the point. He went on the Tonight Show last night and explained it to Jay Leno.
President Barack Obama said no one should take
enjoyment from the images of Muammar Qaddafi's final moments after he
was captured while trying to escape his besieged hometown in Libya last
week.
"That's not something that I think we should relish,"
Obama said yesterday on NBC's "The Tonight Show with Jay Leno." He cited
his refusal to release photographs of Osama bin Laden after the
al-Qaeda founder was killed by U.S. Navy SEALs in May in Pakistan.
"There's a certain decorum with which you treat the
dead, even if it's somebody who has done terrible things," Obama said.
One more time.
Indeed.
Though, of course, he had to add a justification for the killing.
Still, Qaddafi's death "sends a strong message around the world to
dictators that people long to be free."
Yeah. That'll surely get dictators to abdicate. No?
Now, I've written with some frequency here about how nobody much deserves mercy. It's not something we can earn. (That much, although I think no more, the Calvinists got right.) Mercy, I keep saying, is a gift. It measures the donor, not the recipient.
Some people, on the other hand, deserve a break. You know, the if-it-weren't-for-bad-luck-I'd-have-no-luck-at-all types. And some people, you just know they've suffered enough. And earned some good well
And so we come to these children
If you're of a certain age - and maybe even if you're not - you know who they are.
It was 10:22 in the morning. Sunday. September 15, 1963. Birmingham, Alabama. The 16th Street Baptist Church.
And it was 19 sticks of dynamite. Set by members of the Ku Klux Klan. Because it was a black church.
A hate crime.
Terrorism.
The girls were there, in the church. It was "youth day." They were killed.
The four girls were killed. Killed because they happened to be there. And because that's what white folks did to black folks back then. At least some of the time.
Carol Robertson
Addie Mae Collins
Cynthia Wesley
Denise McNair
I'm not religious. I don't buy into that stuff about them being in a better place.
But sometimes from the tragic, from the horrific, rising phoenix-like, comes something that can pass for redemption.
These are the parents of Denise McNair. Holding a picture of their murdered daughter.
I don't have words for their grief. Really, there are none.
McWhorter tells us about the father, Chris.
Mr. McNair, then a school-teacher turned photographer, transcended his anguish to become an agent of community healing, a popular politician whom white people appreciated for his policy of not bringing up his child’s martyrdom.
He's now 85, and that's not a bad legacy. "[a]n agent of community healing."
But of course there's more.
Here's Chris McNair now.
Sadly, that's Chris McNair the convicted felon.
He's beginning a 5-year sentence in the federal pen, convicted of public corruption during his later years as a Jefferson County Commissioner. McWhorter summarizes.
The facts do not seem particularly subtle. Mr. McNair was convicted in 2006 (five years after leaving office) on 11 federal counts of bribery and conspiracy. Local firms had provided ample goods and services to overhaul his Birmingham photography studio and received equally ample contracts over the course of a $3 billion upgrade of the county sewer system while he was commissioner. In addition to the five-year sentence, Mr. McNair was ordered to make restitution of $851,927 for the bribes, including $140,000 in cash that he pleaded guilty to soliciting.
Chris McNair says there was no corruption. No quid pro quos. Friends help friends. Politicians help constituents. Particularly those they like.
However dubious the ethics of those relationships, they were not without some socially redeeming benefit: By breaking bread at home, after sundown, the McNairs and these contractors — all white — most certainly stormed one of the most resistant citadels of segregation: the dining-room table.
Sure. Maybe. I suppose. And maybe it's what McNair's daughter Lisa told McWhorter.
The contractors did what they did not just “out of love for Daddy,” she proposes, but also “out of apology, or guilt.”
I don't pretend any special ability to see into the human heart. But that one strikes me as particularly unlikely. Not that my guesses matter. Whether he took the money in exchange for political favors or not. Whether he did it, if he did, from greed or entitlement. Whether there's fire amid the smoke? I don't know. And at this point it probably doesn't matter.
Chris McNair is doing 5 years. He's 85 now. I haven't checked the actuarial tables, but I don't figure he'll have much time left at the end of those years. If he makes it that long.
But see, and here's where we come back to where I began, there's this question of mercy.
A couple of years before Mr. McNair became, in 1973, one of the first black legislators elected since Reconstruction, the local white leadership asked him to join the delegation representing Birmingham in Look magazine’s “All American Cities” competition. The favorable result was seen as the symbolic readmission of “Bombingham” to the union after the 16th Street atrocity. “I knew that the city fathers were using me,” Mr. McNair told me in 2006, “and they knew I knew they were using me.” But he had been willing to cooperate “because the overall picture was bigger than me — and bigger than them.”
That is the calculus that Mr. McNair’s lawyer, Doug Jones, is hoping the Obama administration will use to assess the clemency petition he has filed (and which “remains under consideration,” according to a Justice Department spokeswoman).
Jones served as Obama's guide in 2004 when the then-candidate for Senate toured the church. Now he's trying to be McNair's guide through the mess of presidential pardon politics.
Let's be clear. Obama can pardon McNair. He can commute his sentence. He can wait it out and do nothing. He can formally blow him off. We've seen Obama'sapproach to pardons so far.
The only folks who get them seem to be plucked at random from the ranks of those who don't need them.
That doesn't bode well for Chris McNair who may seem a bit too Barakian for Barak in his willingness, eagerness even, to cross racial lines, to work with those who hate him.
I'm rarely clear about just what we accomplish by putting elderly men and women in prison. And I don't pretend fully to understand the political dynamics of pardons and commutations and clemency.
Here's what I know.
Chris McNair suffered a loss terrible in its horror as a result of an act of pure enormity. And he's been an agent of healing.
Mercy, as I said, isn't about what he deserves. It's not about him, it's about us.
More precisely, in this case, it's about Barak Obama.
Who has to date shown himself to lack any instinct toward mercy.
Chris McNair provides him with a chance.
There is still, as Obama acknowledges from time to time, a serious racial divide in this country.
Those who would be agents of healing might attend.
It was early Friday morning (or late Thursday night, depending on how you count these things), that I wrote about how the majority of the judges on the 11th Circuit told Ezell Gilbert that it really was a shame that he has to serve 8 1/2 years more than a legal sentence would be but that, darn it, that's just one of those things.
Cue music here.
Near the end, I pointed out that Obama could fix the problem but that the evidence was that he wouldn't.
Of course, Presidents have the power to remedy this sort of thing. Obama could commute Ezell Gilbert's sentence tomorrow. Don't hold your breath. P.S. Ruckman, Jr. has the numbers at the Pardon Power blog. (The boldface is Ruckman's.)
The last 12 presidents have, on average, waited 338 days (.9 years) before granting the first commutation of sentence. President Obama, who has yet to grant a single commutation of sentence, has waited 834 days (or 2.3 years). No president has been slower to grant a commutation of sentence save George W. Bush!
The Pardon Power blog, written by P.S. Ruckman, Jr., is a great resource if you're interested in this sort of thing. I don't have it on the blog roll because, well, there are lots of great resources out there and it's my blog roll so I get to pick and choose. But I go over there fairly regularly and there's always something interesting.
So, even though I went there early Friday morning/late Thursday night to get those numbers I'd seen a few days earlier, I really should have gone back later on Friday. Had I, I would have found "Obama: 8 More Pardons to the Tiny Little Pile."
Gotten more and more interesting numbers about commutations, and from the same post
Learned that Friday afternoon, Obama issued 8 pardons, the first since the 9 he issued in December, bringing his total up to 17.
Wowsers.
And what an 8 they are. Evildoers all.
Back in 1980, Danny Alonzo Levitz was sentenced to 2 years probation for conspiracy.
That same year, Edwin Alan North got 6 months probation for not paying tax on the transfer of a firearm.
Patricia Ann Weinzati was ordered to serve 3 years probation for structuring financial transactions so as to avoid reporting requirements.
Christine Marie Rossiter had to do 500 hours of community service as part of her 3 years probation for conspiracy to distribute marijuana.
The others did some time.
Michael Ray Neal - 6 months for manufacturing equipment to steal cable signals.
Allen Edward Peratt, Sr. - 30 months for conspiracy to distribute methamphetamine.
Randy Eugene Dyer - 5 years (though it was back in 1975) for conspiracy to import marijuana.
Bobby Gerald Wilson - 3 months and 18 days plus 300 hours of community service for selling alligator hides to the feds.
Good for Obama. But really, is this the best he can do?
Should I add that none of these people are currently in prison? Or under any sort of supervision? Nah, you knew that.
Ruckman runs some numbers.
President Obama has now granted a mere 17 presidential pardons (all announced on Friday afternoons) and, amazingly enough, zero commutations of sentence. He has been in office for 850 days. How does he compare to other Democratic presidents? By this point in his own administration, Bill Clinton had granted 55 pardons and commutations of sentence. Jimmy Carter had granted 312 pardons and commutations and JFK had granted 381. Lyndon Johnson had granted 717 pardons and commutations.
Indeed, only a Republican, George W. Bush, has been slower to grant a single commutation of sentence. Julie Stewart, president of Families Against Mandatory Minimums(FAMM) notes fairly enough:
"We’re happy that these eight people will have their civil rights restored by this presidential pardon, but it's sad that the Justice Department has not brought the president one prison sentence to shorten. It can’t be true that there isn't a single person among the 210,000 currently in federal prison who shouldn't be there. In fact, during the campaign the president acknowledged that federal prisons are filled with nonviolent offenders serving excessive sentences. Why, then, can’t he find one to commute?"
I've said before, and repeatedly, that clemency (which is what a pardon or commutation is) is an act of grace. It's about generosity of spirit. It speaks to what we might aspire to be.
Whatever you think of Obama's politics or policies, generosity of spirit as reflected in acts of executive grace doesn't seem to rank high.
But its good news for the guy who sold the alligator skins to the FBI.
* * * * *
On the other hand, Myanmar's ruling junta just announced that it's granting amnesty to some 15,000 or so prisoners, converting death sentences to life, and reducing by a year the prison sentences of everyone else.
Not quite golden for the 2000 plus political prisoners, though. only about 30 of them will be getting out. And as Human Rights Watch points out, reducing a sentence of 65 years to one of 64 isn't really all that generous.
OK, so Obama finally found some folks on whom he could sprinkle some of the fairy dust of Presidential grace. Nine of them. Seven were sentenced only to probation.
Russell Dixon was convicted of a liquor violation. Ron Foster of shaving the edges off coins to trick vending machines, convicted back in 1960. Foster did that when he was 18. He's 65 now. Deserving of the pardon, no doubt. But surely there are those with more desperate need. And equally deserving.
Of course, you can't even describe these as the annual Christmas pardons, since Obama didn't issue any last year. But Christmas presents they are, random, certain to stir no controversy, to burn up none of his ever-declining political capital. And that's really a problem. Obama waited longer than any previous Democratic president to issue a pardon. And all he could find was this bunch.
Pardons are, of course, exercises in executive grace. They can also be political theater.
We, even those of us who don't view it as seriously flawed or hopelessly corrupt, know that our system is imperfect. If we're even marginally honest about it, we know that criminal convictions haunt, often years after the fact and long after there's any reason for the stigma. We like to think we individuate, treat each person based on his/her details. But we know better. Easy to class.
And of course, there are those people convicted on the merest shred of evidence, those who were convicted despite legitimate even laudable (albeit legally unavailable) explanations for what they did. And yet the pardon power is used rarely and quixotically. And, once again, as political theater.
Jim Morrison's mug shot
And so it was that down in Florida, Charlie Crist, in his last days as governor, found a worthy candidate for grace in Jim Morrison. Should he have been convicted of (hell, should he even have been charged with) indecent exposure? Probably not. Will this somehow cleanse his reputation? Will he have a more productive life, now? (Ooops, he's been dead for years, so probably not.) Does it matter to anyone except Doors fans? What, exactly, was the point? Is his conviction and arrest the great wrong in Florida's legal history? Does anyone believe that?
And so we come to Abe Lincoln who signed off on the largest mass execution in US history. 38 Santee Sioux were hanged together in Mankato, Minnesota in 1862. There's little question that in the uprising, led by Little Crow, innocent white settlers were brutally murdered. There's little question that the Sioux were having their homes taken away, forced off their land, and that white soldiers were indiscriminate in attacking and killing Sioux who fought and those who did not. (Duane Schultz's Over the Earth I Come: The Great Sioux Uprising of 1862 tells the story well.) But that's not where I'm going with this.
Hanging of the 38 Santee Sioux
Instead, I want to talk about Abe Lincoln.
1862 was not merely the year the Santee went to war. It was also a particularly dark period for the Union in the Civil War. And that year was the brief war. When the fighting was over, General Sibley had captured some 400 men, Santee and "mixed blood." 303 were sentenced to be hanged. It was, they say, more than Lincoln could stomach. He decided, apparently, that there was sufficient evidence to kill only 38. Lincoln knew that commuting sentences for the rest would be unpopular. Still, he did it. Some he pardoned, some died in prison.
I could not afford to hang men for votes.
But if he saved 265, he signed off on the death of 38. And so it was that on December 26, 1862, the day after Christmas (no Christmas pardons here, Christmas killings instead), the 38 were killed in a single mass execution from a single gallows platform. Except not exactly. It seems that only 37 of the 38 were killed. One, whose sentence had been commuted, was inserted into the lot and was killed in the place of one who was supposed to be. And now, it seems, there's a movement to pardon the wrongly killed guy. Robert Elder had the story in yesterday's NY Times.
But one man, historians say, did not belong there. A captured Dakota named We-Chank-Wash-ta-don-pee, often called Chaska, had had his sentence commuted by PresidentAbraham Lincolndays earlier. Yet on the day after Christmas 1862, Chaska died with the others.
It was a case of wrongful execution, Gary C. Anderson, a history professor at theUniversity of Oklahomaand Little Crow biographer, said last week in an interview. “These soldiers just grabbed the wrong guy,” he said.
Although the story of the mass execution in Mankato is well-known locally, scholars say the case of Chaska — spared by Lincoln, then wrongfully executed — has been long overlooked by the federal government and all but forgotten even by the Dakota.
Now, an effort to keep the story alive is taking root on campuses and even on Capitol Hill as the 150th anniversary of the execution, in 2012, approaches. Commemorative events will include symposiums, museum exhibits, monument re-dedications, book publications and an original symphony and choral production.
“It’s time to talk about it and time for people to know about it,” said Gwen Westerman, a professor of English at Minnesota State University at Mankato and a member of the Dakota who is planning to investigate Chaska’s case and the cultural context of the conflict with a class. She says she is hoping her students can “put together some more pieces of the puzzle.”
“Because there is a historical record” for Chaska’s commutation, Ms. Westerman said, “that’s a good place to start.”
A move to award Chaska (pronounced chas-KAY) a posthumous pardon has drawn some initial support. Before his defeat in November, RepresentativeJames L. Oberstar, Democrat of Minnesota, said a federal pardon would be “a grand gesture and one I think our Congressional delegation should support.”
“A wrong should be righted,” he added.
SenatorAl Franken, a Minnesota Democrat who sits on theCommittee on Indian Affairs, issued a statement last week signaling that he might move the issue forward.
“Senator Franken recognizes that this is a tragic period in history,” said his press secretary, Ed Shelleby. “The senator will continue to look into this incident in the next Congress.”
Obama has, so far, expended his political capital to issue 9 pardons. There are thousands of men and women languishing in prison for extensive crack cocaine sentences when his own Justice Department says that the crack/powder distinction was irrational. Are they all being resentenced? There are innocent men and women. There are men and women who have reformed but are denied jobs and housing and franchise. There are men and women who need help and by all rights deserve it.
I'm not begrudging anyone a pardon. Let Obama and Charlie Crist do feel-good pardon's that serve no particular purpose. It is grace, after all. Portia tells Shylock.
Ruckman again, presciently, from three weeks before Obama acted.
So, while some may be encouraged by the morsels of mercy that President Obama distributes while Santa Claus is in the neighborhood, let us be the first to complain. Shame on you, Mr. President. To date, your clemency "policy" deserves nothing but scorn, slight regard and contempt. Like most presidents before you, you should make pardons (and justice) a year-long concern, and insist that it be the year-long concern of the bureaucrats that are supposed to be working on applications all year long. When there is little evidence that they have more interest in clemency than you, they should be summarily removed, pronto.
Shylock demands that his contract be strictly enforced. He wants his pound of flesh. Portia counsels otherwise.
The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there.
Obama has, as of today, been President for 20 months. The only pardons he's issued to date have been ceremonial ones - for potential Thanksgiving turkeys.
If there's any other President who's waited this long, I'm not aware of it.
After a fashion, I suppose that's a change I can believe.
Is there anyone other than she, her family, her friends (and maybe His Barakness) who's actually excited about the prospect of Justice Kagan? OK, maybe those members of the LGBT community who believe (rightly or wrongly) that she is one of them. Anyone else? Never-robed members of the Harvard and Yale Law School faculties who dream of sitting next to Clarence Thomas and Steven Breyer? Perhaps. But seriously?
Jews? They're already represented way out of their proper affirmative action level (which would be about 0 since they're about 2% of the population).
Liberals? We know they're unhappy.
Civil Libertarians? Nope.
Those who favor . . . what? Accommodation?
Those who believe she can go toe-to-toe with Scalia? Maybe she's smart enough, but does anyone think she has the inclination?
Those who want a lawyer who's actually represented people? Uh-uh.
Those who think that the Court should be made of people who have no particularly strong feelings, no attitudes other than self-promotion, who are looking for someone who'll basically leave Obama alone to do what he wants and won't fuck around with affirmative action (which is what Dahlia Lithwick observes Richard Epstein told JeffreyToobin)? Sure. But that's His Barakness and I suspect nobody else.
Oh, there's a pretense of enthusiasm, of course. But really, it's a sham and everyone knows it. Lithwick's real point was that Obama doesn't have much of a jurisprudential philosophy. That's probably true, a bit peculiar, perhaps, for a former professor of constitutional law, but then that was just a blip and a sideline for the Man. What I think is more true, and what certainly seems clear from the total lack of energy he and his administration seem to have put into finding, nominating, and getting confirmed lower court judges, is that Obama simply isn't interested in the courts.
Let's take a serious, albeit brief, look at the guy.
He likes big sweeping rhetoric and big sweeping programs, but he doesn't much care about the details of the programs. He'll happily trade away every detail as long as he gets the big sweeping part. (That, after all, is the real lesson of health care and of the non-stimulating stimulous package.)
He's a tough-on-street-crime Democrat, supportive of the death penalty even for those who don't kill (that's what he said, criticizing the decision, after the Court limited death sentences to killers in Kennedy v. Louisiana.
He probably thinks Gitmo should be closed and Don't Ask Don't Tell be repealed, but not if doing so might be really really complicated. He thinks Miranda rights should be reserved for those who aren't thought to have done really bad things. Ditto for Fourth (and one assumes all Fifth and Sixth Amendment rights).
He thinks it's OK to blame BP and Haliburton for not taking responsibility for the mess in the Gulf, but he hasn't exactly found any consequence he wants to impose on them. He is, then, it seems an accomodationist. He's not a liberal. He's sure as hell not a firebrand.
Obama ran a campaign based on making everyone think he was really what they were. Liberal? Sure. Moderate? You bet. Conservative? A surprisingly large percentage of the time. And he'd bring us all together because he didn't care about the details of program so he'd let the republicans decide the details of the programs the democrats would pass.
Everyone would be happy.
Didn't work out, of course, but that, I suspect, is the reality of Elena Kagan.
She has the appearance of difference (no judicial experience) without actually being any different. Except that she's probably more conservative than the Justice she's tapped to replace. But it's hard to know, because she's never actually taken a stand on much of anything. Certainly not in the last 15 years.
Me? I'd like a civil libertarian who represented criminal defendants and little guys injured by big guys. Someone who did it with passion. Someone who did it without making too much money at it. Someone who did it because it was right. There's a marginal chance such a person, if chosen carefully, could actually get confirmed by the Senate. There's not a hope in hell such a person could get nominated.
So I ask again,
Is there anyone other than she, her family, her friends (and maybe His Barakness) who's actually excited about the prospect of Justice Kagan?
The answer, of course, is a resounding "NO." That's why Obama nominated her.
Everyone's talking about "empathy" and the Court these days.
The President says he wants his appointment to the Supreme Court to be someone with "empathy." Those who have already lined up to trash the prospective appointee, whoever she (or he, though that seems less likely) might be denounce the very idea of empathy as extralegal squishiness.
Obama's initial comments regarding what exactly he's looking for in a replacement for Justice Souter probably didn't help:
Now, the process of selecting someone to replace Justice Souter is among my most serious responsibilities as President. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people's lives -- whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.
I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving as just decisions and outcomes.
Frankly, that doesn't sound like a description of someone who puts fidelity to the Constitution first. It sounds like someone who puts "justice," whatever that might be, first. And while one surely hopes that "justice" and fidelity to the text of the Constitution will always coincide, that hope seems unlikely given that we begin with a document by and for landed white men, a document which enshrined slavery, a document which didn't count native Americans at all and counted slaves as three-fifths of a person. (Constitution here. Three-fifths is Article I, Section 2, Paragraph 3.)
Of course, the rest of the paragraph took a different tone:
I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role. I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time.
But that does little more than avoid the question of just what Obama would see, in an appointee. What, after all, are those "constitutional traditions" and "constitutional values"? Are they aspirational goals or precise limitations imposed by the framers? Is it a living Constitution or a dead one?
I began this discussion last week (here) and noted that the data suggests that most questions the Court decides are relatively simple. The language of precedent, statute, rule, and Constitution often brings the Court to results on which all or nearly all Justices agree. But not always. And while each side in the hotly disputed cases often takes the other to task for lack of integrity to the underlying principles at stake, the truth is that those principles are frequently not all that clear.
It wasn't intellectual dishonesty (by which I don't mean to discount the prospect that Justices are intellectually dishonest some of the time) that led Justices Roberts and Breyer to articulate (and then vote for) dramatically different understandings of what law and precedent and the Equal Protection Clause require in regard to school desegration in Parents Involved in Community Schools v. Seattle School Dist. No. 1 (here). It was a fundamentally different understanding of what the Constitution means and how to decide what it means.
It's a difference Obama's been talking about, using the language of empathy, for a long time. (Here's a compilation, the "Obama Empathy Speech Index.") He's been addressing it in the context of the Court at least since he explained why he wouldn't vote to confirm John Roberts as Chief Justice:
The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.
In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
Of course, if you believe that Obama is fundamentally wrong to think that in even 5% of the cases a purely objective look at the language of the Constitution, the statute, the precedent will not resolve matters, then perhaps you'll think anything besides pure logic is irrelevant to being a Supreme Court Justice. With sufficient rigor, the answer will always be clear.
In the second of a series of essays condemning the idea of empathy as a criterion for selecting a nominee to the Court (here), Thomas Sowell retold this story about Justice Holmes:
After a lunch with Judge Learned Hand, as Holmes was departing in a carriage to return to work, Judge Hand said to him: "Do justice, sir. Do justice." Holmes had the carriage stopped. "That is not my job," he said. "My job is to apply the law."
Criminal defense lawyer, former public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker. Now retired from the active practice of law.My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic. I review books. NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS - OR ANYONE ELSE, FOR THAT MATTER.
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