I just started watching at 9:05 (had an appointment).
Fortner is being seriously questioned, and doing a good job responding.
Hard question: If the governor did a pardon prior to conviction, could that be raised in court?
Fortner: Yes. He explains that question would come up when the improper pardon was raised as a defense to a prosecution. The court could here that, and, unlike the pardons in this case, it would not be a pardon valid on its face. He then explained how the pardons in this case all recited that there were convictions– they were valid on their face.
He was then questioned about cases involving mandates to the legislature.
Dickinson: Don’t you think there are circumstances that the court would go behind the legislature, talking about the Hunt case. Uses an example of the legislature passing a rule that only the male legislators could vote on a bill. Could the court hear that question.
Fortner: For that kind of arguement, the court could go anywhere it needed to go.
Q: Is it your position that the governor has the right to waive the obligation of the petitioner to publish?
A: The Governor is the sole judge of the propriety of the publication.
Q. asked based on the dicta in Metz
A. Not just Metz. Also refers to Hall (the legislature case) and a 19th C case.
Later: Judicial review ends when the pardons on their face are valid.
Q about pardons for treason (which require approval by the legislature)
A. Consent of the senate would have to be on the face of the pardon.
My note: I think Fortner has answered a couple of tough questions in ways that are problematic for him. If there must be a recital of act by the legislature on a treason pardon for it to be facially valid, shouldn’t there be a recital about publication, another requirement in the constitution?
Fortner: If you are shown a pardon that doesn’t show on its face its validity.
Q: cites a libel case that notes in passing the requirement of publication. The publication of a pardon application was the basis of a libel suit, and the court noted that these publications are required and therefore privilged.
Continue reading Live Blogging the Barbour Pardon Supreme Court argument