Supreme Court Audition Watch: Andrew Oldham Has Some Conspiracy Theories to Run By You
His concurrence in United States v. Sanders starts by suggesting that Biden was too senile to pardon people, and somehow only gets stupider from there.
Earlier this week, a three-judge panel of the Fifth Circuit Court of Appeals issued its opinion in the appeal of Thomas Sanders, whom a jury found guilty of murdering a 12-year-old girl in 2010. The jury originally found Sanders guilty on two counts and imposed death sentences for each. Last December, President Joe Biden commuted this sentence, along with those of 37 of the 40 people on federal death row, to life in prison without the possibility of parole.
The opinion in United States v. Sanders is, to use a technical term, pretty boring: Of the dozen-ish legal challenges Sanders raises, the panel rejects all but one, which is that the imposition of two death sentences violated his rights under the Double Jeopardy Clause. The panel thus vacated one of Sanders’s sentences, but practically speaking, serving only one sentence of life without the possibility of parole is not different from serving two of them.
Merely joining this opinion, however, would deprive Judge Andrew Oldham, a Trump appointee whose name frequently appears on Supreme Court shortlists, of a critical opportunity to audition for this promotion. Thus, he took the time to write a concurrence in which he suggests that Biden could not exercise his clemency powers because he was senile at the time—and that whatever Biden’s mental state, an examination of this country’s “history and tradition” reveals that grants of clemency to people convicted of murder are illegitimate, and have been all along.
I want to stress that nothing in Oldham’s opinion has anything to do with Sanders’s legal claims, let alone the actual opinion with which he is ostensibly concurring. The entire thing is more or less a Breitbart blog post that Oldham really, really hopes Stephen Miller will notice and retweet.
The swipe at Biden comes in a footnote in which Oldham invokes two of the most useful tools in the right-wing provocateur toolbox: faux skepticism and passive voice. “Questions have arisen about the flurry of last-minute pardons issued by the Biden Administration,” he says, noting that “at least one was issued by mistake” and that “some or all were allegedly effectuated via autopen.” Citing William Blackstone’s 18th-century treatise on the English common law, Oldham notes that when kings were “deceived” or “misinformed” about the nature of a royal pardon, those pardons were legally “void.”
Considerably more recently, fringe conservative figures have suggested that a president’s use of an autopen for official acts, rather than a standard signature, might render those acts null and void. For Oldham, a century of precedent affirming the legal sufficiency of an autopen signature is no reason not to invoke a right-wing conspiracy theory pushed by legal scholars like Glenn Beck, Jason Chaffetz, and some Fox Business lady I’ve never heard of.
You do not need to do a ton of reading between the lines to understand the implication: If Biden was not in his right mind—an article of faith among good conservative boys like Oldham—and/or used an autopen, his commutations of those 37 death sentences might be subject to challenge by the Trump administration, which loves few things more than putting people to death.
From there, Oldham embarks on a history of the pardon power dating to 700 AD, a period conservatives often invoke when preparing to take away people’s rights. The Framers, he argues, were skeptical of granting clemency to people convicted of murder, and generally understood clemency to be a tool for (1) extending mercy to innocent people, (2) preserving the peace, and (3) obtaining testimony against other defendants. And since commuting Sanders’s sentence does not fit neatly into any of these categories, Oldham calls it “hard to see” how it “fits with the history and tradition of the pardon power.” He concludes by framing Biden’s grant of clemency—which, again, transformed Sanders’s sentence from death by execution to mere death by incarceration—as a “stain on the noble prerogative of executive mercy.”
It is difficult to overstate how disconnected Oldham’s opinion is with what you or I would recognize as reality. The text of the Constitution (always a good place to start) imposes no substantive limits on the president’s Article II power to pardon people for federal crimes, other than forbidding its use “in Cases of Impeachment.” More than 150 years ago, the Supreme Court described the power as otherwise “unlimited,” and as extending “to every offence known to the law.” The notion that the Court has been wrong about the pardon power this whole time, and that there are just a few sets of circumstances in which presidents can grant clemency to people convicted of murder, is something Oldham more or less invented himself, and would have trouble persuading even the most desperate law review editors to publish.
Making a serious legal argument, however, is not what Oldham is doing here, which is remind the White House of two of his most important qualifications for the Supreme Court: that he loves executions, and believes the Biden administration was a Weekend at Bernie’s situation all along. Stay tuned for next week’s edition of Supreme Court Audition Watch, when we’ll break down the forthcoming viral clip of Kyle Duncan booing loudly at a Shaboozey show because “it’s unconstitutional for country music to go woke.”
(h/t Mark Joseph Stern on Bluesky)
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"From there, Oldham embarks on a history of the pardon power dating to 700 AD, a period conservatives often invoke when preparing to take away people’s rights."
I mean, come on, where's his sword from strange women lying in ponds? That's the only historical basis for a system of government!