“Schick” upheld the President’s power to commute a sentence of death to life w/o possibility of parole even though the “w/o possibility of parole” aspect was not a punishment outlined in the congressional statute (concerning military justice) and thus wasn’t part of congress’s intent in crafting the law.

thus, from the perspective of a lower-level judge bound to SCOTUS precedent, “libby” should be open-shut: even IF congress intended for supervised release to come after jail, “Schick” clearly empowered the president to commute libby’s sentence such as to leave that aspect of the punishment intact despite the removal of the jail component.

thus, legally his 10-page opinion was poinitless. but the judge’s point wasn’t legal – his goal was to score political points at the president’s expense.

Why do i call this a technical nit? Because two things should seem crystal clear to any judge not motivated by personal spite/animus:

1) as Justice Marshall noted about 190 years ago, the explicit grant of a greater power implies the presence of a “nested” lesser power. Thus, since a President has the explicit power to pardon, he surely has the implicit power to shorten or commute.

2) Congress’s intent that a convict serve probation only after serving jail time was surely aimed at the NORMAL proceedings of the criminal justice system, i.e., it was clearly intended to govern the behavior of the JUDICIAL branch, the branch, and was not intended to apply to the extraordinary actions of the President re his pardon power. I doubt that any of the congressmen who passed this bill ever thought about whether a President could commute the jail time but leave the probation intact, so for the judge to raise that issue was absurdly petty.

Thus, it’s clear that this miffed judge is engaging in bush-bashing. sadly, he seems to have many fans.

This Court’s scrappy and practical judgment in response to the presidential commutation of Scooter Libby can take its place with the best of the Court’s important moments in constitutional history.

It’s both ironic and encouraging that the Court, right in the midst of widespread allegations of a reflexive shift on precedent and established law by the “new” United States Supreme Court, has been handed the responsibility to rule on ground floor issues implicating the extent of American presidential power.

In this decision, Libby, potential intrusion of the claimed presidential power obviously tested this Court and this judge, as it would any.

But the reportedly at times, grumpy, at times, genial, always nuts and bolts, once Republican, African American Judge, Reggie Walton assessed the test the Bush executive action posed. Finding it defensible at least in the light of precedent, the judge nevertheless went on to identify, tag and highlight the implications of the possible invasion of the jurisdiction of the legislative and judicial arms of government which he pointedly styled and emphasised as the “co-ordinate branches.” His decision isolates and expresses clearly the portent that this commutation, in this form, in the context of the Libby sentence holds. It is blunt, clear and documented.

Walton did not need to do this. But doing it showed the best traditions of this Court in that City.

U.S. v. Libby, of course, is not U.S. v. Nixon.

But in the morass of the spin, the press, the politics and high browed intrusions, the nuts and bolts, institutional courage that was the history of this case, Walton trumped with nothing more than the courage and independence of straight forward intellectual honesty. He did so in the pattern the court formed long before — then it was by another practical, another often grumpy judge – this one happening to be, Italian-American– John Sirica.

So, at least twice in these last thirty-five years, the circumstances of the location of this Court’s district combined with law and politics to results in the best traditions of the American republic.

So you need to take some heart. What happens – and what fails in — another much grander court, not far away, where precedents are seeming to be cynically ditched and authority is being dealt away by footnotes is troubling.

But what Judge Reggie Walton accomplished in his decision of July 12, 2007 in the district court for the District of Columbia should make us all remember that laws and constitutions are large and tangled webs and that there are plenty of us out there, many alternately grumpy and genial, to make sure, when all is said and done, that the rule of law is not for turning.