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October 5, 2004

A Fall Classic?

With a full slate of baseball playoff games starting today, hard-core baseball references will likely pervade this blog in the weeks ahead. As noted here and here, there are many compelling MLB playoff stories, and it is great fun to talk about Blakely through the lens of baseball lore. For example, it is easy to think of (Yankee fan) Justice Scalia as something of a modern-day legal Babe Ruth, with Blakely perhaps being his called shot.

Today I am thinking about whether we will have a World Series champion or a decision in Booker and Fanfan first. I encouraged guessing about the likely date of a ruling here, and a knowledgeable SCOTUS-watcher yesterday suggested November 1 as when we would see a decision (note that this schedule indicates the World Series will be wrapped up no later than October 31).

Though I continue to expect to see a decision in Booker and Fanfan sometime in November, the need for a quick ruling is considerable and yesterday's argument has me thinking we might see a decision this month. That possibility leads me to ask who could be the Supreme Court's "Mr. (or Ms.) October"?

Justice Thomas seems to have a bit of swagger like Reggie Jackson, the original Mr. October, and it is fun to speculate about the Justice's views on Booker and Fanfan. As is his custom, Justice Thomas did not say a word at yesterday's oral argument. But he has been one of the most "vocal" Justices in the Apprendi line of decisions, and I think there is a real chance he will get to write the opinion for the Court in Booker and Fanfan.

In honor of the greatest month in sports, I highly encourage readers to use the comments for more baseball-Blakely talk. Should we think of Justice Breyer as Abner Doubleday or Alexander Cartwright because of his role in creating the federal guidelines? Is Justice O'Connor the High Court's Jackie Robinson for breaking through the SCOTUS gender line (and might that in turn cast Justice Ginsburg in the role of Satchel Paige)?

Gosh this is fun, please join in. Football fans should feel free to chime in, too. However, since the departure of superstar Justice Byron "Whizzer" White — who was runner-up for the famed Heisman Trophy in 1937 — I think only Chief Justice Rehnquist has the stature to hold his own on the gridiron.

October 5, 2004 at 10:34 AM | Permalink


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I am a prosecutor at the Hennepin County Attorney's Office in Minneapolis,Minnesota.

You asked if Justice Breyer should be viewed as Abner Doubleday. A better character for Justice Breyer might be Joe Cronin. Mr. Cronin was president of the American League in 1973 when the much-maligned Designated Hitter Rule was adopted. The rule was designed to add offense to the game and has extended the careers of many players. However, the rule has always come under fire from baseball purists.

So too the USSG that Justice Breyer helped create had pragmatic advantages over indeterminate sentencing and extended the careers of many an offender. However, that rule has now come under fire from the constitutional purists.

Just a thought. Love the Blog!!!

Posted by: David Brown | Oct 5, 2004 10:59:13 AM

Love the DH analogy, which seems a great fit. Many would say that the federal guidelines, like the DH, is an experiment that has failed. In addition, we could analogize the National League, which plays purer baseball, to state guideline systems, which have purer "charge" offense approaches in their guidelines and thus depend less on judicial factfinding. Great stuff, thanks!!

Posted by: Doug B. | Oct 5, 2004 11:11:34 AM

Just like the Guidelines, which allow jury questions to be decided by judges without juries, MLB allows important decisions to be made by inappropriate parties outside of baseball.

In MLB, the playoff schedule is made by the NETWORKS according to what is beneficial to the Yankees and the NETWORK'S bottom line. Fairness to the other teams doesn't matter and I am not just talking about exposure during prime time. I am certain the the Networks would argue that the whole system would unravel if the discretion to schedule is taken away from them. MLB has improperly delegated the authority to schedule to the Networks.

Posted by: Stanley Feldman | Oct 5, 2004 1:53:43 PM

I'm a peon law student, just swinging buy to procrastinate while working on a major cyberlaw paper...

This might be a bit of a stretch, but here goes: One could also argue that in some ways the arbitrary nature of state guidelines (different standards regarding the Blakely question in different states) is not unlike the arbitrary question of what round a given team will play a team like the Red Sox or the Cubs. Ok, so maybe not the Cubs, but still...a team that has one or two big-time guns on the mound, and then a substantial drop-off. If a team draws the Red Sox in the opening, 5 game wild-card round, such a situation is much less preferable to meeting the Beantown Boys in a 7 game series. In a 5-gamer, you're going to get Pedro and Schilling right off the bat, potentially putting one into a near-insurmountable 2 game hole in a 5 game series. Likewise, if I were to commit a capital crime in, say, Florida, where judges still mitigate or aggrevate for sentencing purposes, that's much less appealing than the same charge in, perhaps, Texas where the aggrevation and mitigation factors are heard by the sentencing jury.

Also, on a different note, why is Justice Ginsburg analogous to Satchel Paige? If O'Conner is Jackie Robinson for breaking the gender barrier, than Ginsberg would be Larry Doby, the first black player in the American League, and second black player after Robinson to play in the modern major leagues (disregarding the blacks who played pro ball in previous incarnations of the major leagues). Where am I missing the analogy?

A final analogy for Blakely-ball, now. On the opposite side of things, one can argue that Blakely would potentially be to sentencing what Carlton Fisk was to batting; when you saw Pudge stroll to the plate, you knew it would be a good 15-20 minute plate appearance for creaky-knees...he took his time, and frequently slowed the game to a crawl. Likewise, mandating that every factor in sentencing must be heard and decided on by a jury would, potentially, slow the judicial process down quite a bit. Instead of running to the plate and taking three quick hacks (or having a judge decide the varying factors), Blakely would Fiskisize the sentencing process. Just an argument for argument's sake...

Posted by: Allen L. Bohnert | Oct 5, 2004 3:34:46 PM

I analogized Ginsburg to Paige and not Doby in part because Paige was quite famous in baseball even before he got to pitch in the majors, like Ginsburg was quite famous in law before she got to join SCOTUS. That's what is most fun about this game, no rules.

Posted by: Doug B. | Oct 5, 2004 5:39:44 PM

So does this make Justice Stevens the Jack McKeon of the Court? The wise old...really old...sage who just might be pulling strings in the background?
Perhaps in this situation, the DoJ is the Big Dog (the Yankees?), while...well, who, exactly, is the underdog trying to take out the favorite. The favorite is supplied by a seemingly never-ending well of resources, while the opposition must fight an uphill battle. Then again, from the sounds of arguments, perhaps the DoJ itself is the underdog, fighting against the Blakely majority to salvage what they can of the guidelines.

BTW-any chance we can get Justices Ginsburg and O'Conner to don the shoulder pads, just for pics???? :-)

Posted by: Allen L. Bohnert | Oct 5, 2004 6:38:09 PM

hp 520 battery

Posted by: | Oct 14, 2008 5:50:58 AM

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