A Friendly Response
Over at the Quaker Fox blog, I have been taken to task for putting forth some effort to explain my view of the pardon power. I am not familiar with the author and have no information as to his particular expertise on the topic, or any other for that matter. Some of his contribution to the dialogue is mere insult. Which is fine by me. I grew up in that kind of atmosphere, know it well and am quite comfortable around it :-) But some of his points are, worthy of response. Among other things he writes:
[Ruckman] repeats over and over points that are obvious to anyone versed in criminal procedure or constitutional law as though he had arrived at something everyone else is either disputing or has missed, i.e. ... the pardon power cannot be restricted, in any way, by either the legislative or judicial branch
I am so entirely thrilled to hear that this is now an "obvious" matter and cordially invite the author to make a serious effort to contact Bruce Fein (a constitutional law expert of some note) who has been scampering about the pages of the Nation's newspapers saying just the opposite.
Ruckman refuses to acknowledge that most of the interest in the commutation by people in the criminal justice field is due to the fact that Bush derided the exact sentencing positions carefully espoused by Gonzalez and the Justice Department, as well as the Republicans in Congress, which will make it much harder for the GOP to advocate higher sentences in the future or to further restrict judicial discretion in sentencing.
I readily admit that I do continue to deny that Bush "derided" the "sentencing positions" made by the Justice Department. He did no such thing. He disagreed with the sentencing judgement of one judge (which involved a degree of discretion) in a single case, given his (Bush's) understanding of the particulars of the case. And the Probation Department disagreed with the judge as well. The author is wrong. The commutation will have zero impact on debates about sentencing in the future and will have no impact on judicial decision making. Unlike my critic, federal judges can discern between the public reasons that the President gives for an individual act of clemency and federal sentencing guidelines. You might even call the difference "obvious."
Ruckman falls back on two limpless arguments, that all presidents have done it equally gracelessly and that there is nothing that Congress can do anyway, so there!
I argue just the opposite: Congress can do something, and should, but it will not (see my commentary here and here). As for the behavior of previous presidents, having studied it extensively, I well realize that my provision of context can be almost effortlessly characterized as an attempt to say nothing more than "all presidents have done it." But I am more than satisfied that the body of my commentary on this topic suggests I am coming from somewhere completely different. I am not a part-time partisan critic of pardons or the presidents who grant them. I am a full-time critic of pardon politics.
In fact, that [sic] are many statutory steps that Congress could take, even short of the obvious step of amending the constitution [sic] to remove or alter the pardon power
Uh-oh. I thought this was obviously not the case.
Ultimately, my goal is to see fewer people such as Scooter Libby in prison and thus, I approve of ample and considered use of the pardon power.
I don't have any such goal. If anything, I would like to see part-time partisan critics of pardons and the presidents who grant them pushed out of the picture for a bit. They have dominated the dialogue for three decades now and have shed little or no light on the topic. The results have not been positive.
The ultimate irony here is the people on the right who love this exercise of the pardon power but are loathe to see either it or the arguments Bush used in issuing it applied in any other contexts.
Maybe. I don't know. As a political scientist, I would rather stick to things for which I can provide empirical evidence. The finger-pointing, cheer-leading stuff has had its day. It is time for us to move on.
[Ruckman] repeats over and over points that are obvious to anyone versed in criminal procedure or constitutional law as though he had arrived at something everyone else is either disputing or has missed, i.e. ... the pardon power cannot be restricted, in any way, by either the legislative or judicial branch
I am so entirely thrilled to hear that this is now an "obvious" matter and cordially invite the author to make a serious effort to contact Bruce Fein (a constitutional law expert of some note) who has been scampering about the pages of the Nation's newspapers saying just the opposite.
Ruckman refuses to acknowledge that most of the interest in the commutation by people in the criminal justice field is due to the fact that Bush derided the exact sentencing positions carefully espoused by Gonzalez and the Justice Department, as well as the Republicans in Congress, which will make it much harder for the GOP to advocate higher sentences in the future or to further restrict judicial discretion in sentencing.
I readily admit that I do continue to deny that Bush "derided" the "sentencing positions" made by the Justice Department. He did no such thing. He disagreed with the sentencing judgement of one judge (which involved a degree of discretion) in a single case, given his (Bush's) understanding of the particulars of the case. And the Probation Department disagreed with the judge as well. The author is wrong. The commutation will have zero impact on debates about sentencing in the future and will have no impact on judicial decision making. Unlike my critic, federal judges can discern between the public reasons that the President gives for an individual act of clemency and federal sentencing guidelines. You might even call the difference "obvious."
Ruckman falls back on two limpless arguments, that all presidents have done it equally gracelessly and that there is nothing that Congress can do anyway, so there!
I argue just the opposite: Congress can do something, and should, but it will not (see my commentary here and here). As for the behavior of previous presidents, having studied it extensively, I well realize that my provision of context can be almost effortlessly characterized as an attempt to say nothing more than "all presidents have done it." But I am more than satisfied that the body of my commentary on this topic suggests I am coming from somewhere completely different. I am not a part-time partisan critic of pardons or the presidents who grant them. I am a full-time critic of pardon politics.
In fact, that [sic] are many statutory steps that Congress could take, even short of the obvious step of amending the constitution [sic] to remove or alter the pardon power
Uh-oh. I thought this was obviously not the case.
Ultimately, my goal is to see fewer people such as Scooter Libby in prison and thus, I approve of ample and considered use of the pardon power.
I don't have any such goal. If anything, I would like to see part-time partisan critics of pardons and the presidents who grant them pushed out of the picture for a bit. They have dominated the dialogue for three decades now and have shed little or no light on the topic. The results have not been positive.
The ultimate irony here is the people on the right who love this exercise of the pardon power but are loathe to see either it or the arguments Bush used in issuing it applied in any other contexts.
Maybe. I don't know. As a political scientist, I would rather stick to things for which I can provide empirical evidence. The finger-pointing, cheer-leading stuff has had its day. It is time for us to move on.
posted by P.S. Ruckman, Jr. | 1:28 AM
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