Joan Biskupic is a CNN legal analyst and their Supreme Court biographer. This week her analysis takes a turn toward mind reading as she examines the recent pardon of Sheriff Joe Arpaio by President Trump. But rather than focusing on the issue of the pardon itself and its relative merit (or lack thereof) the author turns her attention to Supreme Court Chief Justice John Roberts and his colleagues on the bench, seemingly puzzled that they haven’t gone on the attack over this. (CNN)
President Donald Trump’s pardon of former Sheriff Joe Arpaio has been widely denounced as another instance of the President’s scorn for the judiciary. Yet one set of voices has been missing: that of Chief Justice John Roberts and the nation’s leading judges.
They have been silent since the beginning, when Trump derided a judge of Mexican heritage during the 2016 presidential campaign and during the furor over an immigrant travel ban early in his presidency when he referred to a “so-called judge.”
That pattern held after Trump’s repudiation Friday of a US district court judge’s conviction of Arpaio for criminal contempt. The July 31 conviction arose from Arpaio’s flagrant defiance of another judge’s orders in a long-running case over the former Maricopa County sheriff’s targeting of Latinos in Arizona.
I’m not going to get into a debate with Ms. Biskupic over her various complaints regarding the Arpaio pardon or the President’s various comments. First of all, I’m not a huge fan of pardons in general except under the most egregious of circumstances. Even the Founders debated that question hotly (as you can read in Federalist 74), but in the end the power was granted so there’s really no point in me prolonging the debate a quarter of a millennium later. And since Trump is now the person with that power, in the end it’s up to him as to if and when to use it. (Everyone else is obviously still free to applaud or cast stones as they wish.)
What’s more interesting to me here is the idea that a Supreme Court historian would seemingly be egging on the justices to get into this food fight and begin criticizing the President of the United States over it. There’s no keeping politics out of the executive and legislative branches for better or worse, but the Supreme Court was (at least in theory) the one out of the three co-equal branches which was immune from it. These are precisely the types of battles they should be remaining silent on, aren’t they?
I could certainly see the justices weighing in if they thought that the law had been broken, but that’s not the case here. Aside from matters of impeachment (and nobody was trying to impeach Arpaio) the President’s power of the pardon is beyond question. By definition he can pardon any citizen he wishes and he can’t be charged with a crime for doing so. All the arguments currently taking place are based solely on whether it was meritorious, and that’s an argument which immediately falls into the pit of partisan politicking as soon as it begins.
As to Trump’s opinions of various judges which are noted in Biskupic’s article, they are precisely that: opinions. Love him or hate him, by this point I think we’ve all discovered that Donald Trump shoots from the hip or has a shotgun mouth or whichever other phrase you like. Some people find it offensive while plenty of others will cite it as the primary reason they voted for him. But this is once again not a reason for the SCOTUS justices to wade into the political fray.
I realize that they don’t always adhere to that noble standard. Plenty of sitting justices go around and give lectures or do Q&A sessions at various law schools or conferences. And when that happens they can sometimes get a bit free with their opinions and criticism. (Sotomayor is famous for it now and Scalia – may he rest in peace – did plenty of that as well. The Notorious RBG chats up plenty of interviewers as well.) But still, this is a blistering topic in the news right now and all of the various takes on it are hotter than a griddle. It seems to me that it would be exceedingly inappropriate for the Supremes to weigh in on this, honestly.