« A reasonable pair on reasonableness review from the Seventh Circuit | Main | Ninth Circuit limits application of firearms enhancment »

July 16, 2007

Rita makes a Libby motion of sorts in seeking SCOTUS reconsideration

Lyle Denniston reports here at SCOTUSblog that Victor Rita's lawyer "relying on President Bush's clemency ruling in the CIA leak case, urged the Supreme Court on Monday to reconsider its June 21 ruling upholding the 33-month prison sentence" for his client.  There's more:

Going even further, Assistant Federal Public Defender Thomas N. Cochran of Greensboro urged the Court to reconsider its 2005 decision in U.S. v. Booker that salvaged the federal Sentencing Guidelines by making them advisory, not mandatory. (The text of the petition, with attachments, can be found here.)

The President's explanation for nullifying the 30-month prison sentence of former vice presidential aide I. Lewis Libby in the leak case, the new filing argued, "directly conflicts with the federal sentencing policy espoused by the Administration and argued vehemently, indeed successfully, by the Executive's own Solicitor General in this case."

It would be, of course, very surprising for the Supreme Court to decide to reconsider Rita or Booker, but perhaps the Court will at least order the Solicitor General to respond. 

Anyone know when the Court last granted a motion for reconsideration?  Anyone know what timing rules would apply for anyone interested in filing an amicus brief in support of reconsideration?  Anyone else hoping that maybe Justice Scalia will see fit to write an opinion in response to this motion no matter what the Court decides to do?

July 16, 2007 at 02:04 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Rita makes a Libby motion of sorts in seeking SCOTUS reconsideration:


I recall that the distinctions I spelled out between individual clemency decision and sentencing policy were described as "obvious" and hardly worth the time to review. But I see this motion, at page 9, suggests the distinctions I noted are not do obvious to everyone after all:

... "the latest move by the Executive Branch reflects a policy change ..."

Now that strikes me as pretty darn dumb. I think I will go back to pretending I have "discovered" some distinctions well worth making and emphasizing.

Posted by: P.S. Ruckman, Jr. | Jul 16, 2007 2:33:01 PM

Though I applauded Cochran’s hutzpa, as a legal matter, I think the motion borders on the frivolous. The fallacious assumption is that the chief executive’s exercise of the clemency power violates a constitutional obligation to uniformly execute the laws. But the Supreme Court has never recognized such an obligation. To the contrary, the court has expressly rejected the notion that the chief executive’s discretionary authority to mitigate the punishment of some, but not of others, renders the judicial imposition of a legislatively authorized punishment constitutionally suspect.

Thus, in Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981), the court held that a life inmate has “no constitutional or inherent right to [the] commutation of his sentence,” despite the fact that the state had adopted a “consistent practice of granting commutations to most life inmates.” Id. at 464-65.

Similarly, in Gregg v. Georgia, 428 U.S. 153 (1976), the defendant was convicted of armed robbery and murder and was sentenced to death under the state’s post-Furman death penalty statute. His primary argument on appeal was the contention that the various “opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law,” including the prosecutor’s discretion to decline capital charges and the governor’s authority to commute a death sentence, necessarily violated the court’s injunction against the arbitrary and capricious imposition of capital punishment. The court rejected this assertion as “nothing more than a veiled contention that Furman indirectly outlawed capital punishment by placing totally unrealistic conditions on its use.” Id. at 199. Instead, the court pointed out that Furman dealt only with the standards that were appropriate for guiding the jury’s “decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual mercy violates the Constitution.” Id.

In my view, the upshot of these cases is that, at least as a matter of constitutional logic, the merciful extension of clemency to some is not unfair to others who do not receive the same consideration, provided their punishment was legally justified. To be sure, if the president now sincerely believes that the Guidelines are not presumptively reasonable, then as a matter of moral or rational consistency, he arguably should change his policy and advocate a reform of the system. But that is quite different from saying that Victor Rita’s constitutional rights have been violated.

Posted by: Sam | Jul 16, 2007 3:37:41 PM

"Anyone know when the Court last granted a motion for reconsideration?"

Al-Marri. US citizen held in GITMO, denied in April and granted two weeks ago. Oddly, Al-Marri only asked them to hold the case open for further consideration.

Posted by: rothmatisseko | Jul 16, 2007 4:44:24 PM

I thought of the Guantanamo cases also, but that was just on reconsideration of a cert grant. When did the court last reconsider an opinion on the merits?

Posted by: Jay | Jul 16, 2007 4:47:55 PM

> The fallacious assumption is that the chief executive’s exercise of the clemency power violates a constitutional obligation to uniformly execute the laws.

Agree. Again, it seems to be the result of an intentional confusion of aggregate sentencing policy and the individual application of hte pardon power. The Rita petition refers to the sentencing guideliness repeatedly as though they are a significant point of reference from which to judge the intent and impact of a single act of clemency. Increasingly, I can't even admire this as a political stunt. The compelling arguments have yet to step forward for this approach.

Posted by: P.S. Ruckman, Jr. | Jul 16, 2007 6:44:04 PM

Jay, of course you're right. The point is that the SCOTUS might be in a reconsidering kind of mood.

Sam, it's not so much about uniformity as fairness. The argument is that this Administration has stuck to its guns when it comes to crack crimes and other less significant matters, but can't take its own medicine when it comes to one of its own, which is an example of a sort of lawlessness that is un-American. But you're probably right if you're just saying that arbitrary action is the definition of executive power. And I agree that our Constitution hasn't protected against this sort of action or provided oversight over poorly reasoned executive power. And it probably shouldn't -- the buck has to stop somewhere -- which leaves people like Mr. Rita SOL, as they say. He should have made more powerful friends in grade school, I guess -- I mean, who can really say in all seriousness that Libby's crimes don't deserve the sentence he received, especially under the Guidelines?

Posted by: rothmatisseko | Jul 17, 2007 1:30:21 AM

Sam wrote: "Though I applauded Cochran’s hutzpa, as a legal matter, I think the motion borders on the frivolous."

"Frivolous" is a pretty serious term to throw around, and I don't think this motion even remotely qualifies as such. Just because a motion will probably be denied does not mean that it is frivolous. What's more frivolous, Rita's motion filled with unimpeachable logic (if not much legal argument) or motion to reconsider (often filed as a matter of course) basically arguing that the court got the result wrong, with no new arguments or authority?

This is just good representation.

Posted by: Anon | Jul 17, 2007 11:01:51 AM

Anon, if the motion has no basis in legal argument, as you seem to concede, then the unimpeachability of its logic is irrelevant, isn't it? I’m not saying that Cochran's argument doesn’t make sense, but that it is misdirected. He should address it to Congress or the Sentencing Commission as the basis for a change in sentencing policy going forward, not to the Supreme Court.

Rothmatisseko, the argument is about both uniformity and fairness, that is, the claim is that the only fair result is to treat similarly situated persons in the same way. But while that logic clearly applies to the sentencing decisions of a court, which is bound to adhere to due process and the rule of law, it has never been applied to the clemency power, which is a prerogative to make exceptions to the law.

Nor, as you suggest, would it necessarily be a good thing if the clemency power was constrained by a uniformity criterion. If the president's extension of mercy invariably gave rise to an obligation to treat every other relevantly similar case in a consistent and impartial fashion, then as a practical matter, we might well feel constrained (ultimately to our collective detriment) to forgo the practice altogether, because we would legitimately fear that making too many exceptions to deserved punishment would undermine the social stability that justifies the introduction of coercive sanctions in the first place. That would be too bad, because we're all better off, I think, living in a society in which there exists a mechanism for making occasional exceptions to the strictures of retributive justice in cases of “unfortunate guilt,” to use Hamilton’s solicitous phrase. The answer to Bush’s commutation of Libby is not to reign in the clemency power, but to urge him to exercise it more generously, or to elect someone else who will.

Posted by: Sam | Jul 17, 2007 12:13:45 PM

Petitions for rehearing are routine. Almost every edition of the weekly orders list includes at least one denial of a petition for rehearing. They are granted about once every 50 years, but counsel keep trying. I have no idea if Rita's petition is more frivolous than the others that are routinely deined.

Although the Court granted the petition for rehearing in Al-Marri that case was in a different posture, because the Court had not yet granted certiorari. I don't know of a modern case in which the Court has granted rehearing after it was fully argued and decided on the merits.

I agree that Bush's commutation of Libby's sentence was legally meaningless to everyone but Libby himself. Presidents can commute sentences for any reason, or for no reason at all. It is somewhat galling that the justification given was one that Bush's own justice department regularly argues against in every other comparable case where the defendant does not have Libby's connections. It would have been nice to see the president acknowledge that the very guidelines that produced Libby's sentence are applied every day in comparable cases, with defendants no less deserving of leniency than Libby was. But legally, that's all irrelevant. I mean, Bush just as well commuted Libby's sentence for no other reason than "He's my pal." For all intents and purposes that was the reason. There's no indication that Bush has any intention of applying that same logic in any other case.

Posted by: Marc Shepherd | Jul 17, 2007 1:35:00 PM

Sam wrote: "I’m not saying that Cochran's argument doesn’t make sense, but that it is misdirected. He should address it to Congress or the Sentencing Commission as the basis for a change in sentencing policy going forward, not to the Supreme Court."

But Sam, Cochran isn't speaking here as a policy maker, expert witness, or advocate for a general change in the law. He's speaking in his first obligation - in his role as Rita's zealous advocate. He should be praised, not critisized, for placing his client's interests first.

Posted by: Anon | Jul 17, 2007 2:50:31 PM

Anon, I agree that he's just doing his job, which is commendable. I was addressing the substance of his argument, which I think is unconvincing.

Posted by: Sam | Jul 17, 2007 3:18:24 PM

I should add, unconvincing as a constitutional argument about the president's obligation under the Pardon Clause.

Posted by: Sam | Jul 17, 2007 4:02:35 PM

zealous advocacy aside, the motion leads me to wonder if law school had any effect on him.

Posted by: | Jul 17, 2007 4:20:00 PM

Convicted police officer

Posted by: James DiSantis | Aug 24, 2007 1:52:43 PM

I agree, convicted police officer.

Posted by: Miamifence | Jul 14, 2021 9:37:55 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB