Judicial Restraint

Published Nov 28 2007, 07:50 PM by Wendy Kaminer

By Wendy Kaminer

        Conservative advocates of judicial restraint should be praising now beleaguered Judge Kathe Tuttman for doing exactly what they so often exhort judges to do. In releasing Daniel Tavares on his own recognizance (shortly before he absconded to Washington state and allegedly murdered two people) Judge Tuttman was following the law, not making it, engaging in a real-life exercise of judicial restraint. (Superior Court Judge Hiller Zobel’s op ed in the Boston Herald explains the judge’s legal obligations in deciding bail and the legal limits of her discretion.)

        Whatever mistakes were made in the Taveres case do not appear to have been made by the judge, as reports in the Boston Globe have suggested. The Corrections Department was slow in charging him for allegedly assaulting prison guards; and, the defense attorney who appeared before the Judge Tuttman raised good questions about the merits of those charges, which the assistant district attorney didn’t answer with any specificity. (The Globe has obligingly posted a transcript of the bail hearing.)

        But facts rarely get in the way of political pandering to public and fear and loathing of violent crime, especially during political campaigns. So, naturally, Mitt Romney quickly came under attack for appointing Judge Tuttman, a former prosecutor, and, naturally, he quickly called for her resignation, turning on her about as ruthlessly as he turned on former supporter Idaho Senator Larry “wide stance” Craig. (At least, if Romney ascends to the White House, we won’t have to worry about the president's stubborn loyalty to his appointees.)

        We’d have many reasons to worry about the loyalty to crony factor in a Guiliani Administration (although it would be the least of our problems, given the former mayor’s record of thuggish authoritarianism.) The saga of his now indicted former police commissioner, friend, and alleged fellow thug Bernard Kerik exemplifies Guiliani’s penchant for hiring and promoting not necessarily competent or honest acolytes (and implausibly claiming failure to recall hearing about their alleged improprieties.) So it’s bleakly amusing to hear Guiliani attack Romney for appointing Judge Tuttman, whose crime was not breaking the law. In Guiliani-land, obedience to law doesn't seem to be much of a virtue.