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September 30, 2004

Interesting Blakely views

This morning I came across two interesting opinion pieces relating to Blakely. First, in this editorial from the Seattle Times concerning an election for an open seat on the Washington Supreme Court, there was this fascinating Blakely-related passage:

[Candidate Jim] Johnson is a strict constructionist, and would be more likely than [rival Mary Kay] Becker to invoke the Constitution to strike down a law. Becker, the former legislator, says, "One of the rules we follow is, you don't reach for the Constitution right off the bat." She stresses that the court's decisions have to be practical, so that people can live with them.

Despite this difference, Johnson and Becker both support the U.S. Supreme Court's Blakely decision. There, the court said that in sentencing a felon, a judge could not add three years for cruelty if the cruelty had not been proven to a jury. "The right of trial by jury is fundamental," Becker said. "Those might sound like 'liberal' sentiments, but they are really also conservative."

Meanwhile, on the other side of the country, according to this story coming from Duke University, esteemed Duke University Law Professor Erwin Chemerinsky says Justice Stephen Breyer should recuse himself from Booker and Fanfan:
"There's no doubt that Stephen Breyer is one of the 'parents' of the federal sentencing guidelines," said Chemerinsky.... "When he was the Chief Counsel to the Senate Judiciary Committee, he played a key role with regard to the Sentencing Reform Act [passed in 1984], which created the Sentencing Commission that created the guidelines. Justice Breyer was also on the first Sentencing Commission that created the guidelines in the very structure at issue in these cases, though by that time he was a First Circuit judge. Should a justice who played such a key role in developing the sentencing guidelines now participate in considering their constitutionality?

"My own opinion is that he should recuse himself," said Chemerinksy, who has two cases currently on the Court's docket, as counsel and co-counsel. "I don't think a member of Congress who participated in sponsoring a bill or drafting legislation should then, on the federal court, rule on the constitutionality of that, and I think Justice Breyer is in the same position."

Many thanks to Professor Paul Caron, of TaxProf Blog fame, for the pointer to the Chemerinksy article.

September 30, 2004 at 12:30 PM | Permalink


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