Knee-Jerk Contrarianism

There is an annoying compulsion that seems to afflict most liberal writers, at least those who have managed to make their way into the hallowed "mainstream media." It's a compulsion to zig while others zag, to demonstrate your independent-mindedness by being the first "liberal" to say the opposite of whatever the prevailing liberal position is, even when the prevailing liberal position is quite obviously the right one. Call it "knee-jerk contrarianism." Sadly, the reason this annoying compulsion is so common among mainstream liberal writers is because those who are the most deeply afflicted by it are invariably rewarded for it. Unlike conservative writers, liberal writers are much more likely to see their careers advance if they indulge this compulsion whenever possible.

Timothy Noah's column in Slate today--in which he endeavors to defend President Bush's decision to commute Scooter Libby's prison sentence--is a classic of the genre. Noah was clearly eager to be the first "liberal" to make this counterintuitive (and not very well thought out) argument. He writes:

President Bush's commutation of I. Lewis "Scooter" Libby's 30-month prison sentence will likely prompt many people with politics similar to my own to cry bloody murder. It will be called a cover-up. It will be called a payoff for Libby's failure to implicate Vice President Dick Cheney, and perhaps even Bush himself, more directly in the Plamegate scandal. It will be compared to President Ford's pardon of Richard Nixon, and to Bush père's pardon of former Defense Secretary Caspar Weinberger a mere 12 days before Weinberger was to go on trial for perjury in connection with the Iran-contra scandal. Both of these actions were wrong. But the comparison is a weak one. What Bush did was just and fair. It was the right thing to do.

Got that? Unlike his fellow liberals, Noah is able to see through all the nonsense and see the justice in this decision. His substantive argument quickly derails, though:

[Libby's] prosecution was appropriate because Bush administration officials need to know that they are not above the law. Libby's trial and conviction, I hope, got that message across to at least some of them.

But Judge Reggie Walton went overboard in sentencing Libby to 30 months. This was about twice as long as the prison term recommended by the court's probation office, and if Libby hadn't been a high-ranking government official, there's a decent chance he would have gotten off with probation, a stiff fine, and likely disbarment.

Noah has no idea what he's talking about here. First, it is totally routine and unremarkable for judges to hand down sentences that exceed those recommended by the probation office. Second, the reason Walton gave a stiffer sentence was because he thought the probation office misinterpreted the relevant guidelines and ignored a mandatory enhancement. As Marcy Wheeler points out, with that mandatory enhancement added, 30 months became the minimum sentence within the range called for by the guidelines. And keep in mind, Libby made no attempt to show contrition for his crimes at sentencing, which would have allowed the Judge to reduce his sentence. Noah's assertion that Libby might have gotten off with probation and a fine had he not been a high-ranking government official is just not true. Maybe if Libby had pled guilty and negotiated some sort of plea bargain, he could have gotten off without prison time, but no one who goes to trial on charges like these and loses is going to avoid prison. No one. As Josh Marshall points out, in an important recent case on the sentencing guidelines, the Supreme Court held that a 33 month sentence for perjury and false statements was presumptively reasonable.

But who cares about facts? Noah continues:

Walton gave Libby 30 months and a $250,000 fine, then further twisted the knife by denying Libby's routine request to delay the sentence while his lawyers appealed it.

This is flat out false. Under current law, defendants are almost never allowed to delay their sentences pending appeal. If Noah doesn't believe this, maybe he should consult staunch conservative Andrew McCarthy. Moreover, Judge Walton's decision to deny bail was upheld yesterday in a per curium decision by the D.C. Circuit (from a panel that included two Republican-appointed judges). Indeed, it was that decision that prompted Bush to act. The notion that Judge Walton was abusing his power or "twisting the knife" is totally meritless.

Noah then goes completely off the rails and suggests that, because of what happened to Bill Clinton, "Walton should have wondered whether he was imposing a double standard in treating Libby more harshly." To borrow a phrase, that's nonsense on stilts. As an initial matter, it's worth pointing out that Clinton lied about a sexual affair in a deposition in a frivolous civil lawsuit. The kind of perjury, if it even is perjury, happens all the time and no ordinary citizen would be prosecuted for it. Libby lied and obstructed a criminal investigation that was focused on him and his boss, the Vice President. There's a world of difference there. Moreover, it would be totally improper for Judge Walton to treat Libby more leniently than the law demands simply because he thought Bill Clinton got off too light. That's not how sentencing works.

Noah concludes:

Bush did not intervene to spare Libby further disgrace, as Ford did with the Nixon pardon, and he didn't pre-empt a prosecution that might reveal embarrassing facts about himself, as Bush's father did. He waited until it was all over, and he acted humanely.

Actually, Bush's intervention does "pre-empt a prosecution that might reveal embarrassing facts about himself." Who knows what Libby might have revealed once he was actually forced to do time behind bars. And by commuting only the prison portion of Libby's sentence, Bush has allowed the appeal to go forward, thereby preserving Libby's Fifth Amendment privilege and preserving the administration's excuse for not answering any questions about this whole affair.

Noah ends with this:

Yes, it was inconsistent with his past indifference in such matters, particularly when he was governor of Texas. One can only hope that, having behaved decently once, he'll acquire the habit. In the meantime, bully for him.

All I can say is this: if Noah actually believes that Bush will "acquire a habit" of doing this kind of stuff for other unfortunate souls, he is naive to the point of embarrassment. Not only will Bush not "acquire a habit" of seeking leniency for felons, he will continue to push for stronger mandatory minimum sentences and more rigid sentencing guidelines across the board, thereby preventing judges from being lenient even when the circumstances call for it.

Contrarianism can be good sometimes, particularly in a world afflicted by group think. But this type of knee-jerk contrarianism is embarrassing to the journalistic profession. Sometimes the angry masses are right and sometimes their outrage is justified. This is most definitely one of those cases.