As California lawmakers moved Monday to shield the immigration statuses of litigants and witnesses in open court, debate continued to swirl over President Donald Trump’s pardon of former Arizona Sheriff Joe Arpaio.
Advocates of the California legislation, SB 785, which would prohibit any mention of a party’s immigration status without prior approval from a judge, cited the pardon in urging the bill’s passage.
“President Trump’s pardon of Sheriff Arpaio, who illegally targeted people based on suspicions of their immigration status, sends a clear message that those who target immigrants are above the law,” the bill’s author, state Sen. Scott Weiner, D-San Francisco, said in a statement released by his office.
“The state Senate can demonstrate support for immigrant communities by passing SB 785,” Weiner said. The Senate passed the bill on a bipartisan 32-7 vote Monday afternoon.
Read more: Joe Arpaio Pardon Unleashes Surge of Censure
The nation’s judiciary, including U.S. Supreme Court Chief Justice John Roberts Jr., has been silent on the Arpaio pardon—a move that American Bar Association president Hilarie Bass on Aug. 25 called a “blatant disregard for the authority of the judiciary.”
Former U.S. District Judge Shira Scheindlin of the Southern District of New York, now of counsel at Stroock & Stroock & Lavan in New York, said there’s not much that sitting judges can say publicly—“the reaction has to come from the pundits and the press,” she said.
Still, Scheindlin, appointed to the bench in 1994, said she was troubled by Trump’s pardon of a contempt of court finding as well as the president’s reported questions to U.S. Attorney General Jeff Sessions earlier this year about dropping the Arpaio case.
“And [Trump] made statements saying [Arpaio] got convicted of doing [his] job,” Scheindlin said, referring to a speech the president gave last week in Arizona. “If the court said ‘You must stop,’ you stop. Then the president said he was arrested for doing his job. That’s not right.”
In contrast, Walter Kelley Jr., a former federal trial judge in the Eastern District of Virginia who is now a partner at Hausfeld, said the president’s pardon powers are absolute and Friday’s action does not implicate the judiciary. Kelley, nominated to the federal bench in 2004, told The Recorder on Monday:
“Judges have a limited role in our system of government, i.e., to administer and rule on the cases and controversies before them. Nonjusticiable issues, like pardons, are the province of the political world—a world in which judges should not participate. Public confidence in the fairness and impartiality of the judiciary, which is critical to the acceptance of its rulings, depends on judges sticking to their constitutionally defined role. This includes ex-judges who purport to ‘speak as a judge’ on political matters.”
JAMS mediator and arbitrator James Robertson, a former federal judge on the U.S. District Court for the District of Columbia bench, echoed Kelley’s point about the president’s wide power to pardon.
Still, Robertson, named to the bench in 1994, said in email Monday that the Arpaio pardon was unique:
“Before coming unglued we should remember [President Gerald] Ford’s pardon of [President Richard] Nixon and [President Bill] Clinton’s pardon of Marc Rich. Still, I think the Arpaio case is different in kind from the others. The president has once again demonstrated—deliberately and in a hyper-political way—his own contempt for the judiciary. The Arpaio pardon is a message to the American people that the third branch can be ignored or defied while Donald Trump is in office. Most judges will not like that very much.”
At a press conference Monday, Trump said Arpaio “was treated unbelievably unfairly” when an Arizona federal judge in July, Susan Bolton, found him guilty of criminal contempt of court.
Critics accused Trump of using the nation’s focus on Hurricane Harvey’s threat to Texas as cover for the pardon, which spared Arpaio a possible prison sentence for continuing immigration raids in defiance of a judge’s order. Trump said he chose to announce news of the pardon amid the hurricane emergency Friday because “ratings would be far higher than they were normally.”
Arpaio’s attorneys at the Arizona firms Wilenchik & Bartness and Goldman & Zwillinger on Monday asked Bolton to dismiss the case against the former sheriff given the president’s pardon. Arpaio was scheduled to be sentenced on Oct. 5.
The California measure that won approval in the state Senate will now head to the Assembly for consideration.