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January 2, 2007

Profiles of two men who could greatly impact Booker's future

Over at law.com, there are two fascinating and lengthy profiles of two very different men:

Both pieces are great reads, despite the lack of any real discussion of sentencing issues.  However, sentencing gurus realize that these men, in quite different ways, may hold the fate of Booker in their hands.  As Chair of the House Judiciary Committee, Conyers will be in the middle of any serious discussion of any proposed legislative Booker fix in the new session of Congress.  As Solicitor General, Clement will be in the middle of developing the Justice Department's legal positions in Claiborne and Rita, the two SCOTUS cases examining Booker reasonableness review.

January 2, 2007 at 08:47 AM | Permalink


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I read the piece on Cong. Conyers and am very impressed. I am hopeful that he will bring to his position a sense of concern, empathy and understanding for the plight of the poor and minority groups when confronted with the power of the state. One big test will be the crack/cocaine ratio which will require an immediate fix. One thing is for sure, he will NOT be the Congressional version of Justice Thomas. [Thank god!]

Posted by: Bernie Kleinman | Jan 2, 2007 9:49:59 AM

Conyers is awful. First of all he took up the cudgel for a murderer who fled Alabama to seek "sanctuary" in Michigan. When interviewed, Conyers barely knew the facts of the case, and what he did know was incorrect.

Second, Conyers has ethics issues. He had staffers chauffeur his kids around etc. etc. Funny, since that stuff does not constitute a fringe benefit of his employment, it's taxable income--one wonders if Mr. Conyers declared that on his tax returns.

Posted by: federalist | Jan 2, 2007 9:55:21 AM

federalist, one thing I have to say, you are incredibly predictable and will always rise to the bait.

Posted by: Bernie Kleinman | Jan 2, 2007 10:05:08 AM

Whatever, Bernie. You descend into ad hominem at every opportunity.

Posted by: federalist | Jan 2, 2007 10:28:31 AM

I am not sure Conyers is any more "awful" than the typical Congressman of his generation and tenure (regardless of party).

Posted by: Marc Shepherd | Jan 2, 2007 10:58:40 AM

Marc, how many Congressmen take up the cudgel for murderers? Not many--other than the Mumia is innocent knuckleheads.

Posted by: federalist | Jan 2, 2007 11:02:28 AM

And Bernie, is Thomas really that bad, given this:


Posted by: federalist | Jan 2, 2007 11:04:57 AM

"the Mumia is innocent knuckleheads." According to Wikipedia, a "knucklehead" is a type of engine designed for use on Harley-Davidson motorcycles. I do not understand the association with Mr. Mumia.
It is also the name of several indie rock bands, none of which have to do with him either.

Posted by: Bernie Kleinman | Jan 2, 2007 11:19:28 AM

"Take up the cudgel"? Who talks like that? Do you have any information about what Conyers actually did in that case, or is it sufficient that we should picture him grabbing a club and attacking people who tried to arrest the murderer? In Orwell's "Politics and the English Language," he singles out "take up the cudgel" as a dead metaphor that has "lost its evocative power" and is strong evidence of a lazy mind.

Also, why have the comments on recent posts devolved into sparring between trolls?

Presumably, Prof. Berman's post was meant to suggest that Conyers and Clement will have a potentially significant impact on sentencing issues over the next few years, Conyers because he'll be in charge of the committee that would draft any legislative response, and Clement because he'll argue the government's position in the Supreme Court. Does anyone have any insight into this?

According to the linked profiles, one of the more salient characteristics of Conyers is that he usually wins 80% of the vote in his district, so he's not particularly beholden to local interests. He does, however, seem interested in his national reputation, and sees his service on the judiciary committee as particularly important. Thus, his likely stance on any Booker fix will probably have a lot to do with what he perceives national public opinion to be and what impact he thinks the legislation might have on his place in history. On that basis, I could see him doing something that drastically lowers sentences.

Also according to the linked profile, Paul Clement is just an amazing advocate, defends liberal legislation as well as he defends conservative legislation, and "has a knack for offering the Court a clear, if narrow, path toward seeing a case his way." The big question is what the government's position will be in Claiborne and Rita. The legislation he's out to defend was passed with mandatory Guidelines, so it's silly to suggest that what is left after Booker is really "Congressional intent."

Posted by: James Madison | Jan 2, 2007 11:34:35 AM

Federalist, I am not familiar with the case of the alleged murderer, or Conyers's reason for taking up his cause.

However, even supposing that that was not one of his finer moments, one cannot judge a lawmaker from an isolated position he has taken. All legislators are wrong sometimes. Would it be fair to judge Bill Frist's career solely on his idiotic position in the Terry Schiavo case?

Posted by: Marc Shepherd | Jan 2, 2007 11:36:01 AM

JM: if you are saying I am a troll, you are mistaken. Here is the Wikipedia definition:
"A troll is a fearsome member of a mythical anthropomorph race from Scandinavia, mostly Norway. Their role ranges from fiendish giants – similar to the ogres of England – to a devious, more human-like folk of the wilderness, living underground in hills, caves or mounds. In Orkney and Shetland tales, trolls are called trows, adopted from the Norse language when these islands were settled by Vikings."
I am a Jewish defense attorney from NY, 6' tall, and 190 lbs; both of parents came from eastern Europe, not Scandinavia. I do not think I fit into the "troll" category. I cannot, of course, speak for "federalist". My point, if you look above, is the incredible predicatability of the responses "federalist" makes to what are reasoned comments, such as my first posting on Cong. Conyers. If the postings would stick to the matter at hand that would be fine, but, alas, they all too often do not.

Posted by: Bernie Kleinman | Jan 2, 2007 11:46:55 AM

Lovely. federalist dislikes every black democrat who has suggested that any criminal has ever gotten a raw deal, and Bernie Kleinman dislikes federalist and doesn't respond to figurative language. I'm done trying to be the sandbox referee.

Posted by: James Madison | Jan 2, 2007 12:03:19 PM

Federalist seems to hate Sanders more than he likes Federalism.

What exactly does “take up the cudgel” mean? If it means “advocate for them in Congress,” I don’t see what the problem is. If people are really against “judicial activism” then representation in Congress of everyone – including accused or convicted murderers – is as democratic as it gets. Indeed, it would be very sad if a person accused of a crime was not listened to by Congress. In fact, many might argue that nobody accused of a crime should be allowed to offer legal or factual argument as to why they should not spend the rest of their life in jail, instead, their sole remedy should be via Congress.

Indeed, many suggest that we just do away with the defense bar and replace it with a far more viable form of legislative justice. In this manner, individuals can be imprisoned Padilla-style, and people like Padilla would rely on Congress to extricate them from their predicaments. (White people would still get attorneys and trials, of course.)

Justice Thomas is a Supreme Court justices and not subject to re-election. Sure, he might exhibit a lack of judicial independence, but the electorate can’t do much about that.

As to the SG, I respect him, too. However, he has failed many times recently in the Supreme Court. Indeed, most, of not all, of his defenses of the administration’s terrorism policies have failed. People don’t seem to blame him for that, or call him an incompetent advocate because of his failures.

Posted by: S.cotus | Jan 2, 2007 12:28:43 PM

1. I do not dislike "federalist". I find him to be an amusing, albeit predictable, aside from my work.
2. And, yes, I do know that a "troll" is one who seeks to annoy on the web, and raise disputes. I was just being contrary.
I think you will find that majority of my posted comments are more "lawyerly" and hopefully useful to other readers of Prof. Berman's blog.

Posted by: Bernie Kleinman | Jan 2, 2007 1:01:33 PM

With respect to Conyers, I think that my original post was germane. The man swallowed whole a murderer's tale of woe about the Alabama justice system, and he supported an unlawful act by the State of Michigan. The Sixth Circuit's decision in the case here: Alabama v. Engler, 85 F.3d 1205. Given his solicitiousness towards murderers, I am not sure that his influence on sentencing in the US will be to the good. Unless you define "good" as "more lenient".

As for his ethics issues, once again, germane. Or does anyone creditably argue that it is not.

By the way JM, you imputation of racism is truly awful. Call me a troll if you like, but I have not descended into ad hominem.

As for Schiavo, I personally don't think the position idiotic. Whether Schiavo was brain dead or not and whether she ought to live or die based on the say so of a person who quite clearly has moved on with his life does present issues. As things turned out, Schiavo was not conscious and did not suffer, but there are issues with spouses who have moved on with their lives making those types of decisions.

Posted by: federalist | Jan 2, 2007 2:13:56 PM

Federalist: I am confused at your accusation of ad hominem arguments. How would you characterize your use of the word "knuckleheads" above? And, as to your Latin; here is another:
"Verveces tui similes pro ientaculo mihi appositi sunt."

Posted by: Bernie Kleinman | Jan 2, 2007 2:32:37 PM

Ad hominem is not a synonym of name calling. Since I wasn't dealing with the "Mumia is innocent" arguments, "knucklehead" is not the use of ad hominem, whereas you try to meet my arguments with ad hominem.

Posted by: federalist | Jan 2, 2007 3:08:31 PM

I am sorry, but my high school latin tells me that "ad hominem" is a personal attack on someone rather than attacking their argyuments. To me that is the same as name calling. Where I come from calling someone a "knucklehead" is an insult, perhaps for you it is a compliment. If it is, then consider yourself so graced. :-)

Posted by: Bernie Kleinman | Jan 2, 2007 10:25:27 PM

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