Judge Walton’s latest ruling in the I. Lewis Libby case is so confused — and the judge admits it — that the judge provides the perfect opportunity for Mr. Bush simply to go ahead and issue a full pardon to the former White House lawyer. The question before the judge was whether Libby would have to serve two years of supervised release, given that supervised release usually follows incarceration and incarceration had been overruled by the president. The judge ruled that Libby would have to serve the supervised release, but then went on to admit that the court was “perplexed” that its sentence could be accurately characterized as excessive. The answer will not be perplexing to many Americans. It could be characterized as excessive by the president because that’s how it appeared to the president in his judgment.

The judge, our Josh Gerstein reported on nysun.com yesterday, wrote in his opinion upholding Libby’s probation that “it is certainly the president’s prerogative to justify the exercise of his constitutional commutation power in whatever manner he chooses” or, the judge helpfully added, “even to decline to provide a reason for his actions altogether.” Nice of the judge to bow to the Founders. The judge then offered a number of apples to oranges comparisons between Libby and a number of others who drew jail time for similar-sounding crimes. But that is precisely where judgment comes in. Nowhere in the judge’s ruling was there any reference to the extraordinary context of this case, in which Libby got caught up in an investigation launched well after the prosecutor in the case knew the answer to what he had been assigned to investigate.

The Founders meant for the pardon to be used, used often and, as it was put by Joseph Story in his Commentaries, to “be, as little as possible, fettered, or embarrassed.” The left wing critics, not to mention the judge, have gotten themselves into a swivet over the use of a power that the Founders of our constitutional system expected would be routine as one of the most basic checks and balances. The Founders also foresaw the awkwardness and difficulty of conditional pardons. One famed attorney general, William Wirt, cautioned in 1820 of the difficulties of enforcing a conditional pardon — or a reprieve of the type President Bush issued to Libby. But all recognized the fact that the pardon is a basic check and balance. Judge Walton’s big mistake was in quarreling with the president at all, for it is the president’s job, and solely his, to decide whether the judge used good judgment. Not the other way around.