- The Washington Times - Tuesday, December 17, 2002

A judgeship is not a priesthood. Moral lectures or utopian visions are beyond the judicial writ. Federal judges are confined to interpreting the Constitution, statutes and precedents implicated in litigation in accord with the meaning or purpose of the pertinent text. A judge hungering to transform his judgeship into a bully pulpit or religious calling should resign.
U.S. District Court Judge Jed S. Rakoff fits the bill for resignation on that score. Circumstantial evidence is overwhelming that he finds the death penalty morally abhorrent and accordingly skews his interpretations of the Constitution. Exceptionally persuasive was Judge Rakoff's orchestrated invalidation of the Federal Death Penalty Act of 1994 (FDPA) as a violation of due process, a constitutional frolic unanimously reversed last week by a panel of the 2nd U.S. Court of Appeals Circuit in U.S. vs Quinones and Rodriguez.
Alan Quinones and Diego Rodriguez were indicted on April 19, 2001, for murder in connection with a drug-trafficking crime. The government filed a notice of intent to seek the death penalty under the FDPA on Oct. 26, 2001. That same day, Judge Rakoff held a pre-trial conference to discuss a motions schedule for capital punishment issues that might be raised by the defendants. In our adversarial system of justice, the parties to a case are entrusted with deciding which legal claims to press. The judicial role is the impartial resolution of disputes between the litigants, not an impresario directing a drama.
Judge Rakoff, however, gratuitously interjected himself into the death penalty case as the star actor voicing qualms about capital punishment; and, he strenuously protested too much that he was doing no such thing.
He volunteered to defense counsel and the prosecution: "I will tell you one [death penalty] issue that I would think might be helpful to the court to have briefed. I am not suggesting that, because it is not my place to suggest any particular motion for either side. [B]ut certainly a number of reported cases recently, chiefly as a result of DNA testing have indicated that an innocent person was convicted and not so completely rarely as to make it appear aberrational. So I guess the question that would lead any reasonable person to ask is[:] Is a form of penalty that precludes forever rectification of err[or]s that go to actual innocence a form of penalty that accords with the Constitution? It seems to me this is different from how things might have appeared three, four, five years ago [when the likelihood of erroneous convictions seemed remote or hypothetical]. Now I wonder if that changes the legal framework in which such an argument would have to be addressed. I want to stress again, I am not inviting any motion, and I am certainly not indicating any view of the court as to any particular view or argument."
Judge Rakoff's advertised scruples against the death penalty, notwithstanding his heated denials, predictably occasioned motions from defense counsel to hold the FDPA facially unconstitutional. With all the suspense of an Horatio Alger novel, Judge Rakoff agreed with his own anti-death penalty homilies. He sermonized that, "the best available evidence indicates that innocent people are sentenced to death with materially greater frequency than was previously supposed and that convincing proof of their innocence often does not emerge until after their convictions. It is therefore fully foreseeable that in enforcing the death penalty a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence. It follows that implementation of the Federal Death Penalty Act not only deprives people of a significant opportunity to prove their innocence, and thereby violates procedural due process, but also creates an undue risk of executing innocent people, and thereby violates substantive due process."
Judge Rakoff's judicial lark is effortlessly demonstrated. Suppose defendants like Quinones and Rodriguez have voluntarily confessed to capital crimes after receiving customary Miranda warnings. Further, DNA evidence, fingerprints, footprints, handwriting exemplars, voice exemplars and 20 eyewitness all point to the defendants as guilty. Suppose also that the homicides were captured on video, like Jack Ruby's slaying of Lee Harvey Oswald. In such a case, the probability of a wrongful conviction is zero. Yet Judge Rakoff's facial invalidation of the FDPA pivoted on the obtuse conclusion that there were no set of circumstances in which the risk of convicting an innocent defendant would be unalarming.
The Supreme Court, moreover, has repeatedly admonished inferior courts to obey its precedents. Only the high court can overrule the high court. And an unbroken line of Supreme Court rulings for more than two centuries has upheld the constitutionality of the death penalty despite express recognition of the inherent possibility of executing an innocent person. In Herrera vs. Collins (1993), for instance, the court explained that due process "does not require that every conceivable step be taken at whatever cost, to eliminate the possibility of convicting an innocent person" during the course of a defendant's natural life or otherwise.
Nothing brings the law into greater disrepute than moral preaching camouflaged as judging. Shouldn't Judge Rakoff resign to show a decent respect for the law?

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