That’s only if we use the usual President-appoints/Senate-confirms method. We already do that for far too many positions, not just the Supreme Court. If we get more creative in the method of choosing the Commission members, that could be avoided. For example, they could be chosen by lot from retired federal judges. Or have people apply for an open position and then be voted on by members of the federal bar.
The thing is, I don’t see the Clemency Commission as being a real high status position. Certainly a lot lower than the Supreme Court. It won’t interpret law or establish precedents. It’d be even less important than various bureaucratic commissions like the FTC or FERC. So I’m not seeing a lot of politicking involved in selecting its members. But perhaps I’m being naive.
You’ll have to explain why that’s significant. Most of the actions of the Clemency Commission will be non-news. Every once in a while a high profile case will come up, but mostly they will be below the radar. They’re definitely not going to be making decisions about hot button issues like abortion or gun control. So I’m not seeing the importance of who appointed them to the judiciary.
So no pardons for doctors performing third trimester abortions or for felons in possession of firearms? I feel as if you have far more hope for this hypothetical commission than I do.
The former is extremely rare (I can’t think of any cases off-hand) and the latter is so common they’re not that remarkable. I don’t see this commission as being any more political than a parole board. Yes, occasionally parole boards are controversial, but those are fairly rare instances. Much rarer than the Supreme Court.
I’ve often thought that Presidential pardon excesses could be cured by adding one qualifier- any pardon granted by a President could then be easily revoked by any future Presidents.
Yes, this could result in situations wherein someone would be released from jail only to go right back in as soon as there’s a new administration… but really, how often would this sort of thing come up, especially if this power is only used in cases which really demand it? Once an administration is gone, how much effort would a future President expend to go after some poor shlub who was pardoned for possession of weed? On the other hand, if someone like Trump were to issue himself a secret get-out-of-jail-free card, the next President could just yank it as soon as it was played.
The problem with the Presidential pardon is that it’s the ultimate free pass, and there’s nothing to prevent Presidents from abusing it- once it’s issued, there’s nobody who can revoke it. Furthermore, if it’s issued at the end of an administration, there’s almost zero political cost to grant one. But if you give later Presidents the power to revoke previous President’s hall passes, then at least there’s some amount of accountability. It also encourages Presidents to only grant pardons in situations where there probably won’t be any real effort to revoke. If an administration uses a pardon to cover up a crime, a future administration would be entirely within their rights to simply refuse to uphold the pardon.
There’s actually some historical precedence for a later administration removing a granted pardon. Andrew Johnson issued a pardon… but it was never actually delivered. Ulysses S. Grant then revoked that pardon, and the revocation was upheld in federal court. So it’s not entirely unheard of, and I think it could be argued that if Trump gave himself a pardon, Biden (or some later President) could tell him, “Sorry, that pardon was never actually delivered, so nuh-uh.”
If you hadn’t said it, I would have, but I wouldn’t have been nearly as polite about it. “Don’t follow tradition” would read, “ill will and no conscience”.
What alarms me the most is that they actually allow the conflict of interest created when a president pardons someone who may have done something illegal for that president. It emboldens people to do things they might not dream of otherwise doing because, in essence, they have a “Get Out of Jail Free” card. It’s a very dangerous situation as far as I’m concerned, and it needs to be addressed NOW.
I agree that a pardon granted before there is even a trial is a complete farce. It shows that the president giving that pardon doesn’t even care to hear the evidence or consider the validity of a pardon.
Well the President has no power to pardon a conviction obtained by a district attorney, as they works for the state. Federal crimes are prosecuted by U.S. Attorneys, who are replaced whenever a new Administration is sworn in and have no need to defend or justify their predecessors’ mistakes.
A commission would just invite performance art during the confirmation process. I think we just need to add some transparency and some limits. It will require an amendment, so it has to be simple.
Presidents, their immediate family, and their appointees are ineligible
Pardons must be made public during the president’s term
Pardons must be accepted in writing during the president’s term, with the exception of posthumous pardons.
There are ideas here for regulating the pardon power without a constitutional amendment:
Presidential pardons and commutations have become tremendously less common than historically. Coolidge granted 339. Proportionate to current prison population, this means thousands. I am more concerned about too many in prison than a few of the Prexy’s friends getting away with something.
Congress should establish a beefed up pardon office and make the President justify any departure from its recommendations.