Judge Aquilina’s Conduct At Nassar’s Sentencing Was Disgraceful

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Kevin Daley Supreme Court correspondent
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Larry Nassar is a wicked man. Judge Rosemarie Aquilina did not acquit herself well in jailing him.

Dr. Nassar, the notorious USA gymnastics physician who sexually assaulted some 150 women, was sentenced to a 175-year prison term Wednesday in Ingham County Circuit Court in Michigan. In a narrow sense, justice was done. Nassar wrought incredible evil and has now received what was owed to him.

But in a more important sense, Wednesday’s proceeding was a scandal to justice, willfully inflicted by an intemperate judge who weaponized a sentencing hearing to dehumanize a convict in the service of ulterior causes.

The sentencing phase of the Nassar prosecution began on a promising note. Dozens of his victims addressed impact statements to the court and to Nassar, for them a cathartic measure, for him a reckoning.

This lengthy procession of victim impact statements could be a useful component of restorative justice, in which the victims regain agency and power through confrontation with their abuser. In the aggregate, that process displaces stigmatizing norms attending crime and affects changes in societal power dynamics, particularly at a moment when the country is reckoning with sex crimes.

Such an argument is attractive and compelling. Absent Aquilina’s subsequent conduct, it might prevail. But prevail it cannot, given the judge’s disgraceful rhetoric. Her sentencing monologue, replete with spite, permanently sullied the testimony of Nassar’s victims. Where they offered power, she offered performance art, tossing aside a letter he addressed to the court with casual disregard. It was a most useful prop.

Unseemly dramatics followed. The judge told Nassar he could not be rehabilitated, took enormous satisfaction in, as she put it, signing his death warrant, and openly mused about subjecting him to gang rape.

“Our Constitution does not allow for cruel and unusual punishment,” she said. “If it did, I have to say, I might allow what he did to all of these beautiful souls, these young women in their childhood, I would allow some or many people to do to him what he did to others.”

There is nothing remotely just in subjecting a person — any person — to gang rape, or in hoping one might become a rapist to inflict revenge. But justice did not seem to be Aquilina’s true aim.

As Harvard Law School’s Adrian Vermeule proposed in a recent review of Ryszard Legutko’s latest book, western liberalism has an inherently liturgical character that must publicly manifest devotion to certain articles of faith. He suggests the primary liberal liturgy is the “Festival of Reason,” wherein “the children of light spy out and crush the forces of darkness,” eternally renewing the founding festival of 1793, when the French revolutionaries displaced the altar at Notre Dame for the goddess Reason.

This liturgy is the primary venue in which the destructive contradictions of liberalism play out. The sentencing phase of Nassar’s prosecution was just such a ceremony, where a new liberal value — crushing vengeance for sex crimes — triumphed over a competing value, the impartial administration of justice. The prosecution was a victory for Progress in the restless march toward the end of history.

It is appropriate that Aquilina styled herself “Lady Justice” in her remarks. For her, justice was not giving Nassar his due with cold indifference, but advancing the dialectic through a judicial liturgy.

Her remarks also reveal how mutable and unstable liberal contradictions are. Her claim that Nassar is beyond rehabilitation was an affront to the dignity unique to every person, as if he is a subhuman wretch unworthy of redemptive effort.

That in itself is an evil claim, but it raises questions. Under what conditions does a convict forfeit their dignity? Who is empowered to seize it? Are wardens, correctional officers, or fellow inmates obliged to acknowledge and respect it? Can it be seized for uncharged crimes, as it was here? Aquilina does not say. The answer must be discovered by further liturgies.

Following the hearing, several legal affairs reporters raised an unrelated, but important question: what implications might the judge’s display have for judicial transparency? Many American courts — most notably the Supreme Court — do not televise their proceedings, a persistent point of consternation for journalists and commentators seeking greater access for their consumers.

Those opposed to televised arguments (a small group that includes myself) express fears about exactly this sort of emoting should the courtrooms introduce cameras. Her conduct is a useful example for those that would keep records of judicial proceedings, even those commanding intense public interest, off the air.

It’s therefore especially ironic that the press was lavish in its praise. The Guardian styled Aquilina a fashion icon: “Her eyebrows perfectly arched, her lips painted magenta, which matches the magenta streak in her ebony hair. This she piles on top of her head in a fabulous pompadour.” Purple, one should note, has religious associations with the royal and ordained ministries, making magenta a fitting color for the high priestess of Wednesday’s rite.

A front page profile in Wednesday’s New York Times applauded her for “belying the stone-faced image of dispassionate jurists.” As if prudence and dispassion hinder the pursuit of justice.

What they, and it seems most of the country, reveled in was the spectacle of Nassar’s depersonification, left dangling in the stocks as a sacrifice for a new ontology. We are a civilized people who have done away with the stockades and with sacrifices — or so I thought.

Send tips to kevin@dailycallernewsfoundation.org.

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