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May 2, 2007

Eighth Circuit back to its old ways

Continuing a long-standing pattern, the Eighth Circuit today again affirmed some above-guidelines sentences and vacated another below-guideline sentence (all of which shows up on this official opinion page).  The panel reversing the below-guideline sentence in US v. Miller, No. 06-2875 (8th Cir. May 2, 2007) (available here), included retired Justice Sandra Da yO'Connor (though Judge Smith wrote the opinion).  Basic details about the Miller case are available from this local news article.

May 2, 2007 at 10:41 PM | Permalink


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Is the judiciary really so hard up for judicial staffing that it needs to put retired U.S. Supreme Court Justices in U.S. Court of Appeal panels?

Personally, I think that while Sandra Day O'Connor is a very decent justice, that her prestige and historic impact on the many of the precedents she is charged with interpreting unduly swamps the more humble and submissive job of applying that law of the U.S. Supeme Court that the U.S. Court of Appeals is charged with carrying out.

At trial we have the "Abraham Lincoln rule" which says that a lawyer shouldn't try a case in which he is a witness. On appeal, I think that a similar rule ought to apply, judges should not be in the position of lending their credibility to deliberations over rules of law they helped to create.

Given the miniscule number of judges impacted (i.e. only one) and the significant issues it poses with regard to the usual workings of the process, we'd be better off to pump up retirement pay for U.S. Supreme Court Justices (a minimal cost since most leave the bench dead or dying) and end the practice of having retired Justices serve as senior judges.

Posted by: ohwilleke | May 3, 2007 1:30:19 PM

Oh, Willeke, ohwilleke.

I disagree. We already have too lofty a view of the Supreme Court. I think it's a good thing that retired justices can sit on the Courts of Appeals, because it gives the impression (and, IMHO, mirrors the reality) that the law is a seamless continuum: from the citizens who look to it to guide their decisions, the lawyers who look to it to give advice, the judges and juries who rely upon it to reach judgments and verdicts, the courts of appeals who look to it to resolve appeals, and the Supreme Court itself who tries to resolve open and divided issues of law.

To the extent that we put the members of the Supreme Court up on a pedestal, or a Judicial Mount Olympus, we diminish the important roles that all the other players in the legal system perform. To some small degree (and it is very small, by the way), retired justices sitting by designation restore some of the balance to our perception of the system.


Posted by: Mark | May 3, 2007 4:59:36 PM

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