Monday, January 26, 2009

Kalt on the Toussie Pardon

The Washington Post features an editorial entitled, "Once Pardoned, Always Pardoned," by Brian C. Kalt an associate professor at Michigan State University College of Law. Kalt essentially argues that George Lardner Jr.'s position on the pardon and un-pardon of Isaac Robert Toussie is "wrong at nearly every turn."

In Kalt's view, "Delivery and acceptance are not required to make a pardon effective ... once issued, a pardon is a pardon." Of course, this simply begs the question. When is a pardon "issued?" More convincingly, Kalt references the master warrant that listed Toussie's name (attached here). It states: "After considering the applications for executive clemency . . . I hereby grant full and unconditional pardons to the following named persons." Kalt observes the Justice Department announced the pardon "to the world" and contacted Toussie (or his lawyer). Thus, it "sounds quite final."

To his credit, Kalt does recognize that there have been several examples of presidents revoking, voiding or cancelling pardons. But, he insists, "most" are "quite old" (1974 being the most recent known example). He also notes that we do not have information (yet!) as to whether or not those pardons were "signed, sealed, communicated and accepted." In fact, we know that over a dozen were signed and sealed. But the communication and acceptance part of the equation is (currently) not known.

What about the DePuy case - which Larder relies upon so heavily? Kalt says what every political scientist in America knows about every "precedent" in the hands of a lawyer. Kalt says the De Puy case "is easily distinguishable" and proceeds to identify what he sees as critical differences. That is, of course, what lawyers do. But it takes the right set of judges to buy into the distinctions that are made by each side in a case. Thus, when Kalt confidently says "modern decisions step away from the old notion of pardons," we wonder if a Supreme Court with 7 Republicans would agree in the case of a Bush pardon. Who doesn't know that Plessy was the well established applicable "precedent" case in Brown? And what difference did that make?

Similarly, Kalt confidently states that the Constitution (which is also pretty old) does not provide a "remorse exception" to the pardon power. But it is also worth noting that the Constitution does not provide for conditional pardons, commutations of sentence, remissions of fines and forfeitures, respites, or amnesties either. Nor does it allow preemptive pardons. On the other hand, judges and justices have interpreted the language of the Constitution to allow for these things. The Constitution is, thus, hardly the proper (or very useful) guide in such matters - at least not for purposes of prediction. The more reasonable point of analysis would be the persons actually interpreting the Constitution, their beliefs, their opinions and values. Have we not learned from Bush v. Gore?

Finally, Kalt notes draft evaders pardoned by President Jimmy Carter "did not get individual pieces of paper." Likewise, many of Bill Clinton's last-minute pardon recipients did not receive physical warrants and some still haven't. Yet Bush "never purported to have the power to revoke any of these pardons." You have to admit, you don't often see George W. Bush's judgement asserted as a standard for what the Constitution allows, or does not allow! But, with respect to the Carter and Clinton examples, it seems Kalt should also factor in the same "important" consideration that he asserts in dismissing many known cases of revoked pardons: "none of them produced any Supreme Court precedent." See full editorial here.


Brian Kalt said...

Prof. Ruckman,

Thank you for the post. We have tangled over Toussie before, and I don't want to just rehash that, but I have a few thoughts.

First, you chide me for doing what lawyers do with precedents (like De Puy), trying to distinguish them. But I'm not sure I see why approaching this question like a lawyer is such a bad thing. After all, the lawyers in the Obama administration will decide whether to sign on to the Bush theory in this case. If they do, then the lawyers representing Toussie will (I hope) litigate the issue in court, where the matter will be decided by the former lawyers on the bench who will consider the precedents on both sides, and distinguish about half of them.

You talk about the 7 Republican justices and suggest that they will back Bush (presumably because he is a Republican). Two of those Republicans are Stevens and Souter, of course. But even if they weren't, I don't see that sort of reductionist approach evident in, say, Schick v. Reed. This case has virtually no political ramifications, and I think that it is unfair to the Court to suggest that it will decide the case on any basis other than what their view of the pardon power is. My guess as to the latter might be way off, but I think that it's the right question to be asking rather than counting up party IDs.

In other words, I reject your suggestion that, like Bush v. Gore, this case will be decided based on the justices' personal beliefs rather than on the Constitution. That was where they got the notion of allowing conditional pardons, commutations, etc., from--you look at what the Constitution appears to give; you reason that the power to grant the whole implies the power to grant a part; Q.E.D.

The same is true with preemptive pardons, which emerge (if subtly)from the structure of Constitution and the control it gives the president over prosecutions in the first instance. Not to mention the Framer's discussion of preemptive pardons while they debated the pardon power.

I see no similar basis by which one can infer a power to revoke pardons from the power to grant them.

As for Plessy and Brown, there was a whole series of cases leading up to Brown in which the Court stepped away from Plessy in the area of education. Someone surveying that landscape around the time that Brown arose could have made a prediction that the more recent decisions cast doubt on whether Plessy would control a case like Brown's.

The part about not knowing whether any of the previously revoked pardons had been delivered or accepted? You might recall I asked you if you knew of any examples and you said no. I thought about citing you in the op-ed, but didn't because I thought that it might wrongly imply that you agreed with me :)

Finally, on your last point, I hope that it was clear that I wasn't relying on "Bush's judgement . . . as a standard for what the Constitution allows," but rather was chiding the former president for his inconsistency. And of course his failure to revoke Rich's pardon didn't generate any Supreme Court precedent--why would Rich have challenged that?

Anyway, I think that we can both agree on one thing--it'll be nice if Toussie litigates it and the Court just settles this once and for all.

P.S. Ruckman, Jr. said...

EDITOR:I agree that "distinguishing" cases is not a "bad thing" per se. But I think it is important to note - for readers - that any good lawyer can distinguish any two cases. No two cases are ever exactly alike. So, it is important to keep in mind the importance of the decision maker (the judge) who decides which distinctions are legitimate, worth noting at all, relevent, compelling, etc.

What you call "reductionist" approach, I call the "political science" approach to judicial decision making - where prediction is emphasized as much, if not much more than, "analysis" of "the law" and "precedent" - and with good reason. The literature on judicial decision making in political science - stretching back to the 1930's - is solid. Harold Spaeth, long at Michigan State is largely to blame. I cling to this literature.

The Constitution is not self-enforcing. The justices' personal beliefs, opinions and values give it meaning. You don't see this approach in Schick? Well, let's see. The vote on whether or not to uphold the commutation by Eisenhower (a Republican president) was as follows: BURGER (R), STEWART (R), BLACKMUN (R), POWELL(R), REHNQUIST (R) and WHITE (D) v. MARSHALL (D), DOUGLAS (D) and BRENNAN (D). Nothing to see there?

I think my post makes it clear that I have no problem with the communicated and delivered part of the question (in regard to previously cancelled warrants). If, however, you had asked me about whether or not the pardons were signed and sealed, I would have certainly said "yes." But you didn't ask me about that.

It appears, incidentally, that a newly discovered revoked pardon (by Lincoln) was "returned" - which suggested it was sent somewhere, by someone.


Brian Kalt said...

Prof. Ruckman,

Sure, any good lawyer can distinguish any two cases. But there are convincing distinctions and unconvincing ones. Given a situation like this in which the cases are sparse and don't answer all of the questions we have, both sides will have arguments, but that's no reason to throw up one's hands and just count up who appointed the current justices.

Harold Spaeth (who I still see around from time to time) is a great guy. But I doubt that he would tell any lawyer not to try to make legal arguments when in court.

A perfect example is your comment on Schick. Eisenhower purported to communte a sentence. Five Republican-appointed justices supported him; three Democratic-appointed ones opposed him; only one justice "crossed party lines."

But are you really suggesting that if Schick's sentence had been commuted a year later, by JFK, in an identical way, that the eight "partisan" justices would have switched their votes?

I'll freely concede that Republican presidents are more likely to appoint justices who they think will reach results consistent with the preferences of Republican voters. But that doesn't mean that those justices vote that way because Republican voters will like that result. Different justices have different visions of the Constitution, of text versus context versus structure, of the use of history, etc. Interpreters that view the Constitution as a living document will naturally appeal more to liberals that interpreters who are less willing to change things.

Look at it this way. If Toussie litigates, not only will he be fighting Bush's initial interpretation, he will be fighting Obama's ongoing one (because if Obama doesn't agree that the pardon was revocable, there will be no case). So if the justices hand Toussie a victory, is it because they oppose Bush, or because they oppose Obama?

On signing and sealing, you are right that I didn't ask you about that. In several of your Toussie posts, you had already demonstrated the answer beyond any reasonable doubt.

P.S. Ruckman, Jr. said...

EDITOR:Prof. Kalt,

We agree that anyone can make distinctions. Where we seem to disagree is on the matter of which ones are "convincing" and which ones are not. I suggest the determining factor is the personal beliefs, opinions and values of judges. You say ... well, I don't want to put words in your mouth ... so I will just say I am not sure what you see as the key determinant.

As you can imagine, I am not willing to look at almost perfect partisan alignment in a vote and conclude partisanship is not important. On the other hand, I think your Kennedy hypothetical offers me a very poor range of choices - at least from what I remember from teaching constitutional law for 6 years. A Kennedy pardon could be reversed by a Republican majority, yes. But the same Court could issue a more narrow ruling, minus all of the language you so heavily depend on. Or, a per curiam opinion could be granted. Or the Court could say even less by refusing to entertain the case at all. As Pritchett, Schubert, Spaeth, their students and the two tons of literature they have produced would suggest, partisanship can manifest itself in more ways than a simple up or down vote.

And let's make this clear: I did NOT say Spaeth is a "great guy" :-)


Brian Kalt said...

Prof. Ruckman,

Your wrote: "I suggest the determining factor is the personal beliefs, opinions and values of judges. You say ... well, I don't want to put words in your mouth ... so I will just say I am not sure what you see as the key determinant."

I would say that the professional beliefs, opinions, and values of judges matter the most.

You suggested before that political scientists are more concerned with "prediction" than with "analysis" and "precedent." But when I emphasize some distinctions between cases and reject others, I am basing it on which distinctions I predict the Court would emphasize or reject, based on my reading of what sort of analysis and interpretive techniques they are receptive to--not based on my reading of what party they support, and which party a particular result is good for.

Again, it is no coincidence that Republicans tend to appoint different sorts of justices than Democrats do (for what it's worth, there have only been two Democratic appointments in the last 40 years). That doesn't establish that the justices just vote their personal preferences. Returning to Schick, I can't imagine that the fact that Eisenhower issued the commutation rather than Kennedy made an iota of difference in the result, the breadth of the language in it, the decision to grant cert in the first place, etc. (To the extent that presidents mattered in the case, I would think it would have mattered much more who the president was when the case was decided (Nixon).

In any case, if prediction is the hallmark here--and given that we have both probably said as much about Toussie as we can say--why don't we settle it with a bet. I'll bet you a steak dinner that if Toussie litigates this, he wins. (If Obama relents and moots the case by sending him an individual warrant, I would take that as vindication, but I'd be willing to call that a tie.)

P.S. Ruckman, Jr. said...

EDITOR:Prof. Kalt,

I would confess that the language "professional beliefs, opinions, and values" does not have much meaning to me. If by that you references things like restraint, activism, views of constitutional interpretation and the like, I would, again, say that the personal beliefs, opinions and values of judges trump all of that. Hence, by the usual generalizations, an activist judge will appear restraint oriented if the law is as he/she like it. And a restraint oriented jugde will act like an activist judge if the law is not like he/she likes it. The clear determinant is the personal attitude, not the claimed "philosophy." Ditto for methods of interpreting the Constitution. Those favoring historical analysis will, first and foremost, use it in a manner that suits their personal fancy. Or, they will forsake it altogether if the desired conclusion cannot be reached. The various philosophies and approaches to interpreting the Constitution are mere after-the-fact-rationaliztions, not primal causes (or very good predictors) in and of themselves. I believe Justice Stevens spoke to this with great eloquence back during the Kennedy nomination.


Brian Kalt said...

I disagree, obviously. But let's take it in your terms for the moment. What personal preferences of the justices (or at least of five of them) is served by ruling against Toussie here?

Are you saying that at least five justices will vote against Toussie because they want Bush to win that badly? Or maybe that it'll be 9-0, because the Republican justices will want Bush to win, and the Democrats will want the incumbent Obama to win?

And how about that steak dinner?

P.S. Ruckman, Jr. said...

EDITOR: Let me highly recommend 2003 Michigan Law Review Michigan Law Review, May, 2003, 101Mich. L. Rev. 1733, SURVEY: VIII. JUDICIAL DECISIONMAKING: ATTITUDES ABOUT ATTITUDES The Supreme Court and the Attitudinal Model Revisited. By Jeffrey A. Segal and Harold J. Spaeth., Michael J. Gerhardt

Brian Kalt said...

I like Gerhardt's work on impeachment, and I agree with his critique in that piece of the attitudinal model.

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