Confused Judge? Hardly.

A July 13th New York Sun article by Joshua Gerstein, "Judge Disputes Bush's Rationale for Libby's Commutation," quotes the judge Reggie Walton in part:

"It is fair to say that the Court is somewhat perplexed as to how its sentence could be accurately characterized as ‘excessive.' [Although] it is certainly the president's prerogative to justify the exercise of his constitutional commutation power in whatever manner he chooses [the] Court notes that the term of incarceration imposed in this case was determined after a careful consideration of each of the requisite statutory factors [and] was consistent with the bottom end of the applicable sentencing range as properly calculated under the United States Sentencing Guidelines."

It is interesting to note what part of this quote would be considered most important to persons in various professions. To lawyers, it might be hard to decide. Constitutional lawyers might land on the word "prerogative." It appears sentencing experts are all about the last five lines. As a political scientist, one word jumps out of that quotation like a 300 pound guerrilla ...

"accurately"

You see, political scientists generally rejected "mechanical" (a.k.a. "slot machine" or "index card") jurisprudence way back in the 1930s. Judges are not automatons who objectively apply "the law" in an emotionless, non-biased manner. They have discretion (even when there are "guidelines" and "precedents") and it matters. Their opinions are not so much the summary of a logical journey, and revelation of the point of arrival, as they are mere rationalizations for the basic premises and conclusions they were operating with before they even considered the case at hand. When judges "apply" and "interpret" the "law," they are political actors making policy. That is exactly why most presidents select judges who are of their own party and why we are all concerned about who is nominated to the United States Supreme Court. It matters a great deal who sits there and what their personal attitudes and opinions are. One has the distinct feeling that "guidelines" and "precedents" are no match for a majority opinion - and rightly so.

The Legal Realism movement of the 1930s was, of course, the by-product of the influence of existentialism in the late 1800s. What I have summarized, above, is currently taught in every public law sub field in every graduate program in the discipline of political science.

Of course, today, the infection of subjectivity is a given in many fields of intellectual inquiry in the academy. Outside of the so-called "hard sciences," it is reiterated at every turn. Claims to objectivity are, on the other hand, considered to be just barely short of intellectual fascism. Claims to objectivity are the stuff of racism, Nazi politics, heretic burning religious fanatics and anti-intellectual simpletons.

Judge Walton might very well deem his calculations "accurate," but it is well worthy of note that President Bush's statement with respect to the commutation nowhere suggests that the calculations were not "accurate." Bush, who holds the pardon power, expressed his own opinion about what he thought was the excessive nature of the sentence. He did not, in any way, suggest Walton had incorrectly interpreted, applied or calculated anything. Walton has his calculations. The President has his opinion.

That being said, Walton appears to insist that the concept "excessive" is actually a term of hard science, to be accurately estimated by standard calculations, minus even a hint of discretion, or subjectivity. Bush, apparently, disagrees with the judge. And, on this point, I do too. And so do most of the men and women in my profession. Indeed, our educational training compels us to do so. Apparently, what is getting Judge Walton's goat is the fact that the Probation Department had a very different view of the whole scientific calculation process. Dissent in collegial bodies is all any political scientist has ever needed to suspect variation in personal opinions and attitude are a driving force in decision making.

It is safe to say that this is just the latest manifestation of the fact that Judge Walton has fallen far too short of the ideal of a dispassionate adjudicator.