Should There Be Judicial Nullification?

05/22/2010 07:55 pm ET | Updated May 25, 2011

If Elena Kagan or any other nominee responded during a confirmation hearing that she would follow and enforce the law so long as she agreed with it, the nomination would end in a blink -- as it should. At every confirmation hearing assurances are extracted from nominees that they will follow the law and the Constitution and not substitute their own agenda. No one can quarrel with the concept that a judge has the duty to follow the law if it is constitutional and validly enacted. Both the oath of office and the principle of the separation of powers require it.

Which brings me to Judge Jack B. Weinstein, whom I consider to be a friend and one of the most respected judges in the country. Judge Weinstein "has gone to extraordinary lengths to challenge the strict punishments, issuing a series of rulings that directly attack the mandatory five-year prison sentence faced by defendants charged with receiving child pornography". The defendant in the subject case was a married man with 5 children. (N.Y. Times 5/22/10) In addition to the five year minimum, he faced a sentence of 11 to 14 years. Voicing his clear disapproval of child pornography, Judge Weinstein suggests that those who view the images do not pose the same threat to children as those who produce or sell it. I suppose he could have picked a less emotional crime to take a stand, such as drug users or possessors, but the issue raised is the same. Can a judge nullify or circumvent a law that is otherwise valid and constitutional?

A judge in Nazi Germany ordered the execution of persons who cracked jokes about Hitler, of a doctor who told his patient she was courageous for having a baby in the fifth year of the war (casting aspersions on the chances of a Nazi victory) and of a lawyer who wrote a letter consoling a relative of someone condemned by the court. When charged, the judge claimed that he was following the existing law. (Time, 7/14/67) Now before anyone goes ballistic, I am not suggesting in anyway that the laws about child pornography equate in any way to what was happening in Nazi Germany; so please don't go there. The laws against child pornography and punishment for their violation are appropriate and necessary. I mention Nazi judges only to demonstrate that there are some circumstances in which a judge may have the right or even the duty to refuse to follow the law. Is an unjust, disproportionate sentence in the eyes of the judge such a moment?

Mandatory minimums and three-strike laws have been a frequent thorn to the judiciary. They often result in outrageous sentences against persons who do not deserve them. The Second Circuit recently pointed out that the sentences required by legislation for looking at children being sexually abused sometime eclipse those for actually sexually abusing a child. (N.Y. Times 5/22/10) Judge Weinstein has decided to depart from the usual practice and advise juries in certain cases as to the mandatory minimum sentence that the defendant faces. Whether or not this tactic is upheld on appeal remains to be seen, but I suspect that Judge Weinstein, whose courageous and honorable goal is fairness in sentencing, seeks public awareness of the injustice of certain sentences, and if nothing else, he has accomplished that.