Former Senator Bob Dole said in 1996 that the judges a president appoints constitute his “most profound legacy.” Senate Democrats are blocking President Bush’s judicial appointments not only to blunt his legacy, but also to preserve President Clinton’s.
Senate Democrats are stalling Bush nominees to appeals courts already dominated by Clinton appointees. On the Ninth Circuit, for example, nearly three-fourths of the full-time judges are Democrat appointees, 14 of them by Mr. Clinton. They include Richard Paez, whose left-wing activist record kept his nomination tied up for more than four years. Judge Paez is busy meeting his opponents’ expectations.
On November 2, 2001, Judge Paez ruled that a sentence imposed under California’s “three strikes” law violated the Constitution’s Eighth Amendment ban on “cruel and unusual punishments” because it was “grossly disproportionate” to the crime.
In this case, Leandro Andrade had been convicted of, or pled guilty to, state and federal offenses including theft, first degree burglary and transportation of narcotics. Oh, he also escaped from prison once. In 1994, nearly 72 percent of California voters decided no longer to treat such habitual criminals as if they were first-time offenders. Instead, each additional crime would become more serious. Potential criminals had two choices – obey the law or move.
In 1995, Andrade twice stole merchandise from a K-Mart. As his first crimes, these would have been misdemeanor petty thefts. Because they weren’t his first crimes, they were felony petty thefts with a prior. Under the statute, his prior felony burglary convictions became strikes one and two, and these felony convictions became strikes three and four. The statute required consecutive sentences of 25-to-life for each of these final felonies. The California Court of Appeals and the California Supreme Court each rejected Andrade’s argument that this was cruel and unusual punishment.
Like any determined judicial activist, though, Judge Paez knew the result he wanted to reach here. Somehow, some way, he had to make this sentence seem “grossly disproportionate” to the crime, a standard offered by three Supreme Court Justices in a 1991 decision. A pretty slim reed since it was not an actual majority holding but, hey, it’s enough for an activist.
This sentence, however, was not disproportionate (grossly or otherwise) to the people of California – their statute required it for this series of felonies. Knowing he could not risk simply applying the actual statute to the actual facts of the case, Judge Paez did the activist five-step and made up whatever he needed to achieve his result.
First, he re-framed the facts. This case, he said, involved “a sentence of 50 years to life for two shoplifting offenses … by a defendant with several previous convictions for non-violent offenses.” A poor schmuck getting socked with 50 years for shoplifting might make good propaganda, but it’s not what happened here. Andrade was not convicted of misdemeanor shoplifting, but of felony petty theft with a prior, because he had chosen a life of crime. Choices have consequences.
Second, Judge Paez disparaged the statute. Andrade’s own prior crimes turned what would have been misdemeanors into felonies. His own prior felonies turned these into his third and fourth strikes. What Judge Paez called a “unique quirk” in the law, Californians called sound policy designed to punish habitual criminals.
Third, Judge Paez kept calling these “non-violent” crimes. While he might have preferred this as the relevant sentencing distinction, the people of California did not. It may come as a shock to an activist judge such as Judge Paez, but a statute is not unconstitutional simply because he would have enacted a different one.
Fourth, Judge Paez claimed he was only overturning this one criminal’s sentence, not striking down the statute itself. Because this was a sentence required by the statute, however, this is a distinction without a judicial difference. And the best clue that this was only the beginning is that Andrade’s lawyer was Erwin Chemerinsky, the left-wing USC law professor who finds cases with far-reaching revolutionary impact. The Chicago Tribune cited legal experts noting that hundreds of California prisoners had been given long sentences for similar seemingly minor offenses. Professor Chemerinksky will be busy.
Finally, Judge Paez ignored his own court’s rule against overturning a criminal sentence under the Eighth Amendment that “does not exceed statutory limits.” The people of California enacted a statute that requires the sentence in this case and Judge Paez should have left it alone.
Judge Paez is the kind of aggressive, results-oriented activist his opponents predicted. Which brings us back to the current obstruction campaign against President Bush’s nominees. You can hear Democrat Senators urging Tom Daschle, their majority leader, to keep the Bush nominees on the shelf because those Clinton judges are hard at work. As General Lando Calrissian said to Admiral Ackbar in “The Return of the Jedi,” “we’ve got to give them more time.” That’s how you protect a judicial legacy.
