For some reason, some blogging law professors (and others) across the nation -- and political spectrum -- have taken to shaming President Bush because he's not pardoning enough people. I agree with them that Bush appears to be mighty "stingy," as Professor Berman calls it, with his use of the pardon.
Does the phrase "barking up the wrong tree," however, come to mind in this situation? I mean, wasn't it Bush's stinginess in commutations as governor that has been raised in regards to DOJ-nominee Alberto Gonzales's recommendations about said pardons?
Professor Kerr calls presidential pardons "a critical safety valve in the federal criminal justice system," and I agree. But does he honestly believe that Bush is receptive to such critiques? Didn't he say that he never allowed an execution to go forward in which he doubted the fairness of the decision? This despite the fact that the Supreme Court has since ruled that the execution of the mentally retarded -- whose execution Bush allowed -- is unconstitutional. (Yes, I know, that it was constitutional at the time; my point is that advocates called for Bush to show the same judgment then that the Supreme Court issued a few years later, to no avail.)
Even Professor Reynolds weighs in on the same side as Berman and Kerr, writing: "Being careful is one thing; shirking is another." Over at Crime & Federalism, likewise, he (I believe) goes so far as to write that he can "refute the arguments against President Bush's using his pardon power."
For all their rhetoric, however, I can't see this having any impact -- even if it would become a more mainstream media story. Bush does not like people telling him he's wrong, and he won't change course once he's called out on an error -- no matter how large. He also appears, historically, to be unlikely to have any interest in using this power more extensively.
Although this might be a great academic -- or even political -- exercise, and although I agree with their points, I see their attack on Bush's non-use of the pardon as a potential "locking in" of its non-use. If there were eight presidents out there with pardon authority, perhaps I would see a point to this (as one of shaming Bush's nonuse to encourage more effective use from the others). No one else, however, has this power, so what -- if anything beyond making the critique -- do they hope to accomplish with this?
The only possibility I can see is a long-term one: There aren't eight presidents at any one time, but -- hopefully -- there will eventually be eight other presidents and these bloggers' aim is those future inhabitants of the White House. If that is so, however, I hope they or others begin working on a more detailed critique of the non-use or defense of the use to guide those future presidents.