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August 28, 2007

Could all the changes at DOJ lead to changes in the post-Booker landscape?

Over at SCOTUSblog, Lyle Denniston has this extended post exploring the impact and possible future of Solicitor General Paul Clement serving as Attorney General and Deputy Solicitor Gregory Garre serving as Solicitor General.  Unsurprisingly, Capital Defense Weekly questions here what all the transitions could mean for certain capital punishment issues, and I am starting to think about what all the transitions could mean for post-Booker federal sentencing realities.

As regular readers know, out-going AG Gonzales repeatedly advocated a Booker legislative fix in the form of "the construction of a minimum guideline system" (see here and here).  Though such a "Booker fix" seemed like a political non-starter after the 2006 election, this proposal still ensured that other possible reform responses to Booker were unlikely to emerge from the Justice Department. 

Meanwhile, as SG, Paul Clement has participated in the legal battles over Booker first-hand.  Clement, who argued Booker, surely played a leading role in the decision to advocate an advisory guideline remedy after Blakely and has also helped direct the government's post-Booker appellate strategies.  And, with the recent Rita ruling and with Gall and Kimbrough to be argued in five weeks, Clement surely has a keen understanding of the state and likely fate of the current federal sentencing system.

These realities do not ensure that DOJ's approaches to Booker will be modified in any way, but they heighten the possibility that the changing of the guard could portend a change in policy perspectives.  Moreover, even if Clement or others do not announce any specific shift in policy, key sentencing insiders like the US Sentencing Commission and the Judicial Conference might view these transitions as a key opportunity to promote new ideas that the old guard would have likely resisted.

August 28, 2007 at 07:45 AM | Permalink


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Simple answers to simple questions: No.

Posted by: David in NY | Aug 28, 2007 10:02:45 AM

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