June 2, 2009
Two great commentaries from the legal blogosphere
Because there is too much great legal commentary in the blogosphere these days to keep up with it all, I have to highlight two recent posts that should not escape the eyes of sentencing fans.
First, this post at Judging Crimes has lots of great things to say about the importance of Judge Sotomayor's experience as a district judge (and other great insights). Here is one amusing snippet:
Appellate judges who don't first serve as trial judges are prone to stupid decisions. Not because the judges themselves are stupid, of course, but because they literally don't know what they're doing. Example: Scalia insisting that his 2006 Davis decision imposed a constitutional test that was "objective and quite 'workable'."
After three years, that test has come to mean something different in every state -- literally, without exaggeration, different in each of the 50 states. It produces contradictory results on a daily basis. It's become a constitutional Rorschach test, revealing judges' biases with hi-res fidelity.
So was Scalia lying? Of course not. How could he have known enough to be able to lie about what he was doing? He's never been a trial judge, never practiced criminal law, and hasn't practiced any kind of law since 1967. He was just guessing.
Trial court experience is far more important than appellate experience to a nominee's success as a justice. More is at stake than the difference between pondering an evidentiary question after reading exhaustive appellate briefs versus making a decision during a whispered bench conference, though of course that's a lot.
Second, this post at Pardon Power justifiably calls out President Obama for failing to give any attention to clemency matters while being able and eager to do so much else. Here is the start and end of the post:
132 days into his administration Barack Obama continues to distinguish himself as one of the slowest presidents in history when it comes to the use of federal executive clemency. With the number of clemency applications soaring, prison populations booming and increased concern over issues such as mandatory minimum sentences, the Obama Department of Justice cannot account for a single pardon or commutation of sentence. In the Republic's 220 years, only seven administrations have been slower. Among modern presidents, Obama is in an even smaller class -- with Eisenhower (R), Nixon (R), George H.W. Bush (R), George W. Bush (R) and Bill Clinton (D). Obama will pass Eisenhower in just a couple of months. See chart here.
Too much on the plate? Hard to imagine Lincoln, Wilson and FDR had it easy. Not to mention they didn't have nearly as many career employees in the federal bureaucracy to assist them. Remember, Obama is conspicuously proud of his supposed ability to "do more than one thing at a time."...
What to expect? At this point, there is really very little reason to expect anything different from Obama. Pardons and commutations will come, eventually. Indeed, for all we know, Mr. Obama may wind up granting more pardons than any president in history. But the fact remains that the longer he waits to exercise the pardon power, the more of an afterthought it will appear to be. And, if he decides to spit out pardons in the month of December and in the last year of the term, clemency will continue to be viewed as a "gift," especially for partisan supporters, cronies and those with access to the White House in the chaotic last days of an administration.
June 2, 2009 at 08:52 AM | Permalink
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Unfortunately, meaningful use of the clemency power is practically always unpopular. Although the Constitution allows it, the average person views pardons as a subversion of the legal process. I'm not sure, but perhaps Gerald Ford's prospective pardon of Richard Nixon was the event that lodged this perception permanently in the public psyche. Until Scooter Libby, George W. Bush restricted his pardons to obscure people convicted of minor crimes long ago. His non-Libby pardons were practically a footnote to his tenure. I suspect that President Obama has taken a lesson from this. He does not want to waste valuable political capital extending a benefit for which there is no perceptible public demand.
Posted by: Marc Shepherd | Jun 2, 2009 9:41:19 AM
I'm not sure what is menat by "modern" presidents, but the folks who are still worse/slower than Obama cover about 34 of the last 57 years, or, alternatively, 5 of the last 10 presidents.
So, although I agree that Obama should get to it already, it's not like that post is making a compelling case that he is a outlier at this point...
Posted by: Anon | Jun 2, 2009 11:33:58 AM
The criminal law is somewhat related to lawyering. Scalia had high grades in that field and has a good grasp of lawyer methodology. Yet, he made a mess by his lack of experience.
Someone please explain. Where do these know nothing incompetents get the arrogance to think they can set policy in shipping, in medicine, in banking, in computers, in finance? Here is where.
Army Airborne. The sole validation of their idiotic decisions is at the point of a gun. They are doing unauthorized, ghoulish human experimentation on a mass scale, without the slightest preliminary data, nor even any awareness of their sick practice, at the point of a gun. They are like two year olds throwing things around, and busting up the economy and all activities, oblivious to the damage they are doing.
Posted by: Supremacy Claus | Jun 2, 2009 12:08:36 PM
"oblivious to the damage they are doing."
No, I don't think so. Read Richard Rorty's "post-modernist bourgeois liberalism."
They know very well what they are doing.
Posted by: Daniel | Jun 2, 2009 1:09:15 PM
From the quoted snippets, the linked posts seem weak.
Trial court experience is far more important than appellate experience to a nominee's success as a justice.
I understand the value of trial court experience and I'm happy to see that President Obama has nominated someone who has it, but is it really "far more important than appellate experience to a nominee's success as a justice"? The Supreme Court is an appellate court, and--unlike a trial court--the salient feature of its rulings is that they have broader effects beyond the immediate case. While trial court experience is good for knowing whether a new rule made by the Supreme Court will be "workable" for trial judges, trial judges typically have lots of experience following rules and next to none actually making them.
But the fact remains that the longer he waits to exercise the pardon power, the more of an afterthought it will appear to be.
Oh no! The appearance of an afterthought! What could possibly be worse? There's something lame and annoying about these posts that criticize Obama's inaction on people's pet causes. I'm more concerned about his failure to acknowledge the role of ObamaGirl during the election.
Posted by: anonymous | Jun 3, 2009 10:59:05 AM