Reinstatement of marathon bomber’s death sentence exposes Democrats’ need to hide radicalism

Are Republicans paying attention? If they are, they have taken note of the Supreme Court’s decision — at the anti-capital punishment Biden administration’s urging — to reinstate the death penalty against Boston Marathon bomber Dzhokhar Tsarnaev. They are also studying the incredible testimony of President Biden’s judicial nominees, including Judge Ketanji Brown Jackson, whose Supreme Court confirmation hearings begin in two weeks. 

If so, they are learning that Democrats know their radical positions on law and order are indefensible. In a time of rising crime, disorder, and a growing sense of national insecurity, the courts and law enforcement should be decisive issues in this year’s midterm elections. Republicans ought to own them.

The terrorist Tsarnaev’s case before the high court had more intrigue than interesting legal issues. Last year, I contended that the First Circuit federal appeals court’s reversal of the death penalty that had been unanimously recommended by a jury in Boston and then imposed by the trial judge, George O’Toole, was a classic in progressive abracadabra. 

Capital sentences were common throughout the United States when the Constitution was ratified. They have been upheld by the Supreme Court. Indeed, the Constitution explicitly assumes the propriety of the state’s placing the life of an accused in jeopardy provided there is due process of law. Consequently, regardless of how philosophically hostile the First Circuit’s three-judge panel was to the death penalty, it had no tenable way to hold it unconstitutional. 

Consequently, the panel, which produced a mammoth opinion by Obama-appointee Ojetta Rogeriee Thompson, did what is often done in these circumstances: It hunted for alleged errors that it could portray as significant enough to vacate the death penalty, but not so grave as to disturb the alternative sentence of life-imprisonment, and then essentially said: Why bother executing him when he’s going to spend the rest of his days in custody?

This First Circuit’s reasoning was dismantled by the Supreme Court’s 6-3 majority, which displayed the court’s ideological divide between six justices who, to greater or lesser degrees, hew to constitutional originalism and judicial restraint, and three who are committed progressives.

As Justice Clarence Thomas explained, the trial judge’s procedure for questioning jurors was eminently fair and did not fail to probe adequately for media bias; and the judge’s decision to exclude clearly unreliable hearsay evidence about a murder allegedly committed by Tsarnaev’s older brother and fellow bomber, Tamerlan, was sound. Since a very forgiving “abuse of discretion” standard applies to trial judge’s decisions about jury voir dire and the admissibility of evidence, Judge O’Toole’s clearly correct rulings were easy to uphold. Not surprisingly, the dissenting progressive justices, like the First Circuit, rationalized that the death sentence should have been avoided.

What was surprising, however, was that the Biden Justice Department pursued the case. Understand: Biden officials are in the same place as the First Circuit and the Supreme Court’s progressive dissenters. The administration is avowedly anti-death penalty. Biden, a lifelong political weathervane, has characteristically changed his position with the political winds: a strong proponent of capital punishment as a senator in the high-crime eighties and nineties, when Democrats posed as tough on crime, but suddenly opposed to it when his party turned against law-enforcement and framed the death penalty as racist. 

The winds are forever swirling, though. While Democratic Powers-That-Be are woke progressives, ordinary Americans — including rank-and-file Democrats and independents — are not. It is one thing to oppose capital punishment in the abstract, as Biden did on the campaign trail (or at least in statements issued from his basement). It would be quite another thing to oppose capital punishment for one of the Boston Marathon bombers, who willfully deployed nail- and shrapnel-laden explosives, sadistically killing three innocent people, including a young child, and maiming hundreds of others.

Politically, in an actual case involving so heinous a mass-murder attack, Biden’s administration could not bring itself to oppose the death penalty — just as the Obama/Biden administration’s anti-death penalty attorney general, Eric Holder, could not bring himself to resist seeking capital punishment when Tsarnaev was indicted in 2013.

Yet Biden — being Biden — is engaged in cynical hypocrisy. Even though his Justice Department appealed the First Circuit’s reversal of the death penalty, Biden has imposed a moratorium on the execution of death-penalty sentences. He has promised that no death-row inmate will be put to death on his watch. That is, the president will try to get away with telling the public he vindicated capital punishment for a vicious jihadist murderer, while simultaneously assuring the radicals who call the Democratic tune that he remains a committed capital punishment naysayer.

Such hypocrisy is not a death penalty bug, it’s a Democratic Party feature.

Last year when Biden nominated Judge Ketanji Brown Jackson to the D.C. Circuit federal appeals court, Sen. Ted Cruz (R-Texas) asked her if she believed in a “living Constitution.” This was not a trick question. Even non-lawyers grasp that the “living Constitution” — the notion that our fundamental governing document is somehow “organic” — is the animating conceit of the legal left, empowering progressive judges to locate new rights and mandates in the emanations adrift from its penumbras.

Judge Jackson, however, claimed she had never developed a view on the matter. Yes, we’re to believe that Ketanji Brown Jackson of Harvard College, who clerked on the Supreme Court — for Justice Stephen Breyer, a “living Constitution” devotee — after serving as editor of the Harvard Law Review, and then litigated criminal cases as a private lawyer before serving as a federal district judge for eight years, somehow never thought much about whether judges are bound by our law’s text and its meaning at the time that text was adopted. Sure.

And don’t miss last week’s questioning of Arianna Freeman, the progressive lawyer Biden has nominated to the Third Circuit federal appeals court, by Sen. John Kennedy (R-La.). Again and again, Kennedy pressed Freeman on whether she subscribes to the philosophy that the government may invoke “prosecutorial discretion” as a pretext for refusing to enforce laws on “social justice” grounds. Freeman talked up, down, and around the question — a “word salad without dressing,” Kennedy quipped — but she wouldn’t answer it, which, of course, made the answer obvious.

The Biden administration and the progressive lawyers it is nominating to the bench at record speed know they cannot defend politically what they want to do by wielding the power of law. They have to camouflage their radicalism because it would repulse the American mainstream. That is a huge opportunity for Republicans. They don’t have the votes to stop Judge Jackson’s nomination to the Supreme Court. Her hearings, however, are their chance to highlight Biden’s judges, Biden’s Justice Department, and how essential it is that we elect Republican congressional majorities that can check them. 

Heading into the 2022 midterms, no issue is more critical to the nation’s future.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.