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October 31, 2005

Will Alito continue with the Constitution Project's Sentencing Initiative?

As noted in this Friday post, Judge Alito is a member of the Constitution Project's bipartisan Sentencing Initiative group.  That group, under the leadership of former Reagan AG Ed Meese and fromer Clinton Deputy AG Phil Heyman, has been looking at the the post-Blakely and post-Booker world for the last 16 months in an effort to develop "specific, consensus recommendations for revising sentencing laws to comport with the new constitutional rules."  As this mission statement further explains, "[t]he committee's work is focused on improvements in federal sentencing laws, especially in light of state experiences."  A complete list of the group's membership is here, and my prior posts on the work of this group can be found here and here and here.

Though I do not know about the specifics of Judge Alito's efforts with the Constitution Project's Sentencing Initiative, I can confidently state that his involvement in this project means that he has given more thought to Blakely, Booker and broader sentencing reform issues than anyone else on any of President Bush's short lists.  It also has me wondering whether Judge Alito will continue his work on this project; I believe the group is about to release a large report as a follow-up to its recent announcement of "Principles for the Design and Reform of Sentencing Systems" this past summer (basics here, commentary here).

I hope Judge Alito continues to serve on the Constitution Project's Sentencing Initiative.  His service to date suggests there is no ethical conflict with a sitting judge participating in a policy discussion of sentencing issues even when related legal issues could arise in his court.  Consequently, I see no ethical reason why Judge Alito should not continue to play a role in the very important work being done by the Constitution Project's Sentencing Initiative.  His involvement in this bipartisan project highlights the importance of putting the concerns of good government above partisan bickering.

UPDATE:  Chris at Law Dork is thinking further about these matters, and he suggests (a) that Alito's promotion "could have a quite significant negative effect on the independence of the group or creativity of the project," and (b) that pending and future litigants would be troubled by Alito's work in this arena.  Though I am not sure I fully understand Chris' points, I suppose they might also apply to Justice Kennedy's recent involvement in the ABA Commission on sentencing reform that bears his name.

In any event, Chris' comments spotlight that a lot of nuance can be brought to this matter.  I fear that Judge Alito might, out of an abundance of caution, end his service with the Sentencing Initiative, but I continue to hope he won't.  I also hope his work in this arena, and more generally his views about various aspects of federal sentencing, might be explored during his confirmation hearings.

October 31, 2005 at 09:15 AM | Permalink


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Tracked on Oct 31, 2005 8:51:42 PM


As a member of the Constitution Project's Sentencing Initiative I can assure any interested parties that Judge Alito's nomination will not impact the "independence of the group or creativity of the project." I can also report that I have found Judge Alito's involvement in the group to be quite thoughtful and open-minded. Whether or not one agrees with Judge Alito's views, I, for one, am encouraged by the nomination of a Judge who has the intellectual interest to take time out of his schedule to volunteer for policy projects such as that of the Constitution Project.

Posted by: Jim Felman | Nov 1, 2005 2:29:10 PM

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