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July 26, 2005

Fallout from Sensenbrenner's letters

Editorials, as detailed here and here, have come out strongly against House Judiciary Chairman James Sensenbrenner for the remarkable letters he sent to the Chief Judge of the Seventh Circuit and to AG Alberto Gonzales concerning the decision in US v. Rivera (background here, commentary here and here and collected here).  And now, according to this Chicago Tribune story, as a result of the flap, "a congressional aide closely tied to the controversy has been dismissed."

Here are some details from the article:

Jay Apperson, chief counsel of a House Judiciary subcommittee, was the staffer who brought the case to Sensenbrenner's attention, and he has publicly defended Sensenbrenner's unusual intervention.  Apperson quietly and suddenly left the subcommittee last week.  A spokesman for Sensenbrenner, who chairs the House Judiciary Committee, did not return calls seeking comment.

But a Capitol Hill official familiar with the matter said Apperson's departure "had everything to do" with his role in the controversy, in which Sensenbrenner directly contacted the chief judge of the 7th Circuit Court of Appeals in Chicago to demand an increased sentence for Lissett Rivera, a drug courier.

Sensenbrenner could face a complaint before the House ethics committee, because House rules prohibit communicating privately with judges on legal matters. In addition, general rules of litigation prohibit contacting judges on a case without notifying all parties, which Sensenbrenner did not do.

As the article notes, Jay Apperson previously played a role in the harsh treatment that US District Court James Rosenbaum received before a House Judiciary subcommittee a few years ago.  Also, I believe that Apperson had a hand in the development and passage of the Feeney Amendment and may have drafted the terrible "Booker fix" provision of Section 12 of HR 1528.  Thus, Apperson's abrupt dismissal is quite a significant development in the on-going tussle between Congress and the judiciary over sentencing.

July 26, 2005 at 10:10 AM | Permalink


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Prof. Berman, according to the Sentencing Commission's website, you'll be in a unique position to question Mr. Apperson on these issues in about two weeks, correct? It appears that you'll be on a panel together on August 8. I look forward to your report of his explanations.

Posted by: Mike | Jul 26, 2005 1:59:18 PM

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