It is a sad fact in this world that if you do your job well, and you do it the way it was intended, you are going to make someone mad. My job, as a lawyer, means I advocate for one side or the other, plaintiff or defense. In my questions, in my filings, in my arguments before a court, I am going to make someone mad. Usually it’s the other side (not the other lawyer) because they don’t think they should be held accountable for their words and deeds. But sometimes it’s the judge. Sometimes the judge gets upset that I take a particular approach. Usually in that situation, I get a rebuke from the bench. What usually does not happen is that the bench decides to take sides against me and my client. I have never, in 24 years, argued in front of a court where the judge was an active participant against me.
That does not mean, however, that it does not happen.
Judges are human. Humans have failings like pride and arrogance and a lust for power. If you deny that you have any of these failings, you’re denying your essential humanity. Because we all do. It is our reason and our morality that keeps these in check, and keep judges on the right side of the judicial ethics rules.
There is a category of judge, however, and you find these on both the right and the left, who believe that policy is more important than a particular case, and that their view of policy is the only “right” view of policy. Whether that policy is gun control, abortion, or immigration, policy-making judges do exactly what they are not supposed to do. Instead of being mindful of the Marbury v. Madison statement that it is the province of the courts to “say what the law is,” instead, these courts say what the law should be. A good example of this came out of the Seventh U.S. Circuit Court of Appeals recently in a decision that essentially expanded the plain text of the Civil Rights Act to include sexual orientation. When judges go beyond the plain text of the statute to put their own impressive spin on what the law is, they are abdicating their judicial office (which is an unelected office) and stepping into the role of the Legislative Branch. And, again, make no mistake that this happens on both the left and the right.
The reason the courts of appeal and the supreme courts exist is that judges make mistakes. No one expects a judge to be perfect. But the judges in the Arpaio case, both the judge who issued the injunction and the judge who tried the case, were far from perfect.
First, the injunction Arpaio was supposed to have violated was unclear. The Border Patrol had instructed deputies to bring illegal immigrants to their checkpoint. The deputies honored that request. The order did not cover that scenario. Injunctions must be clear to be enforced. A judge can order you to pay $100, but he can’t order you to pay “what you owe” because it’s vague and subject to interpretation. Here the order was unconstitutionally vague.
The second problem is found in Rule 42. Rule 42 says that a person on trial for criminal contempt is entitled to a jury trial. The government argued where the sentence is six months or less, the entitlement doesn’t exist. But Rule 42 provides for the trial by jury, and no jury was provided. This alone is a violation of the Sixth Amendment. The criminal contempt charged was lodged in the manner that it was specifically to prevent the sheriff from getting a jury. This is an abomination, especially so where the trial requires the discretion of a jury in interpreting a judicial order. No judge ever thinks their order is vague, because they see the order through the eyes of a lawyer, not the eyes of a normal person. Even if, strictly speaking, a jury trial was not “required,” no harm could have resulted from a jury trial. The failure to grant one should disqualify Judge Bolton from any appellate position in the future. This because discretion is the soul of judicial action, and the judge abused hers here.
In a word, the sheriff did not get a fair trial. He got the pre-ordained result the Court intended. In other words, it was a witch hunt, orchestrated by a federal judge, who got a wedgie because the sheriff was doing what the Border Patrol could not do by itself: enforce immigration law.
The conviction was for a federal misdemeanor and involved a potential sentence of only six months. Some might say this isn’t the kind of thing the federal pardon power is intended to cure. And they would be wrong. The power of the pardon is there to take away the stain of a wrongful conviction. There is just as much stain from a misdemeanor as there is from any other conviction, and in the Sheriff’s case it dishonored fifty years of good and honorable service to the United States.
There has been a lot of finger pointing to pardons and commutations issued by Obama for left-wing terrorists and the treasonous viper Bradley Manning. Sure, those pardons were wrong, but the media celebrated them rather than condemning them. But here is what’s interesting about Trump and the Sheriff.
First, Obama issued pardons at the end of his term, when he could not suffer any kind of political damage from the pardons he issued. In other words, pardons issued on the way out the door of the Oval Office. Obama had no risk, other than the risk to his already diminished historical standing as the first black president, and the worst Democratic one in 150 years.
Trump stood up, much like President Bush did, and pardoned the Sheriff close in time to the conviction (Bush commuted Scooter Libby’s sentence, but wouldn’t give him a pardon because he hated Cheney). But both men owned the acts and took the political fallout from the acts. They didn’t slink out the door.
This is essentially the difference between true courage, and convenient favor peddling. It took courage to pardon Arpaio because everyone was telling him not to issue the pardon. It took no courage to commute Bradley Manning’s sentence, because Obama can’t suffer any fallout from it.
I want a president with the courage to do what he sees as the right thing. I understand there are those who disagree that it was the right thing, and I am happy for them to express that opinion and be accountable for it. Voters have a funny way of reminding politicians that they are there to do the will of the people. When the time comes, and the time will come, those who opposed President Trump early in this administration will pay a penalty at the ballot box.