Bench Memos

The “Moderates” Are Not So Moderate: Paul Watford

The “short list” of candidates for President Obama’s Supreme Court nominee is getting pretty short nowadays, and some reports even say it’s down to three. I’ve already exposed two of the three supposedly “moderate” candidates, D.C. Circuit Judges Sri Srinivasan and Merrick Garland, whose records show them to be very liberal. This post turns to the last of those three candidates, Ninth Circuit Judge Paul Watford.

Watford is what would have once been described as a standard ACLU liberal.  He is an anti-law enforcement extremist whose record on issues like illegal immigration and the death penalty makes it clear that he would push the Supreme Court to the far left.

Before I get into the details, I should point out that if Obama chooses Watford as his nominee, it will demonstrate beyond dispute that the Administration is nominating Watford as a political ploy, not because he could actually be confirmed. As a quick survey of his career and record demonstrate, Watford will be unacceptable to a broad swath of the American people. And that’s not just because Watford sits on the fringe with the notoriously left-wing Ninth Circuit Court of Appeals.

First, let’s look at Watford’s activism in defense of illegal immigration. In 2010, Watford filed a lawsuit on behalf of the American Civil Liberties Union attacking an Arizona law discouraging illegal immigration by eliminating “sanctuary cities” and requiring state and local governments to cooperate with federal immigration enforcement. Watford challenged an Arizona immigration law again in 2011 on behalf of the ACLU and open-borders advocacy group MALDEF (Mexican American Legal Defense and Educational Fund), this time attacking a statute regulating day labor. When the issue finally reached the Supreme Court in 2012, Watford again represented the ACLU, arguing that states were powerless to deal with illegal immigration. In both cases, the ACLU played the race card over and over, calling the laws “racial profiling” and worse.

Watford’s activism on behalf of illegal immigration didn’t stop after he took a seat on the Ninth Circuit in 2012. He voted in 2014 to strike down another Arizona immigration law (which Arizona voters had approved by a 3-1 margin) that would have rejected bail for serious criminals who were in the country illegally. The majority opinion, which Watford joined, is a classic example of liberal judicial activism. Watford endorsed the idea that “substantive due process” – a notoriously amorphous doctrine often used by liberal judicial activists – forbade Arizona citizens from addressing a major problem with illegal immigrants fleeing the criminal justice system.

And then there’s the death penalty. Watford submitted an amicus brief in 2007 in another ACLU-connected case, this time arguing against the execution of two cold-blooded murderers. One was a cop-killer who had ambushed two police officers, shooting them both in the back. The other was a child-killer who shot to death a two-year-old and his parents as they sat in a dry cleaner’s parking lot. Kentucky juries sentenced both men to death.

For years, anti-death penalty activists had tried to abolish the death penalty indirectly by challenging lethal injection formulas and harassing manufacturers of lethal injection drugs. As a result, several states placed their executions on hold while waiting for the Supreme Court to determine whether they would have to modify their execution procedures. Watford’s brief was part of that abolition effort, arguing on behalf of several physicians who opposed Kentucky’s protocol for execution by lethal injection. The Supreme Court rejected the murderers’ claims by a vote of 7-2.

We’ll hear a lot in coming days about Watford the “moderate.”  His record tells another story.


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