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July 9, 2008

Is Louisiana working on its Kennedy rehearing petition? Will Gov. Jindal stay true to his word?

According to SCOTUS Rule 44, a party has 25 days to petition the Supreme Court for rehearing, which means Louisiana now less than two weeks to file a rehearing petition in the Kennedy child rape case.  Notably, according to quotes in this local news account (with my emphasis added), Louisiana's Governor has essentially promised that the state would be filing a rehearing petition:

Governor Bobby Jindal says the U.S. Supreme Court made a factual error when it banned the death penalty as a sentence for those convicted of raping children.... Jindal says the high court "got this case wrong, plain and simple."

"As both the Governor of this great state and as a parent of three children, I continue to be outraged over the Supreme Court’s absurd decision to overturn a death penalty sentence for the brutal rape of a child while citing that ‘the death penalty is not a proportional punishment for the rape of a child;’ and I will do everything I can to see that this decision does not stand," Jindal said.

Interestingly, the Supreme Court's rules provide that the "Clerk will not file any brief for an amicus curiae in support of, or in opposition to, a petition for rehearing."  Thus, politicians and others troubled by the Kennedy ruling cannot formally show support for rehearing through the filing of a brief.

Jmac_1_2 There are lots of other ways, however, that support for rehearing can be demonstrated, and I wonder if Gov. Jindal really will do "everything" he can to see that the Kennedy decision gets reconsidered.  Specifically, Gov. Jindal seems tight with Senator John McCain and might here seek the benefits of the Senator's high profile as the Republican presidential nominee.  Given that Senator McCain has already bashed the Kennedy ruling (details here and here), it would make sense for Gov. Jindal to ask Senator McCain to speak out and actively support Louisiana's rehearing petition from the campaign trail.

Going further, Gov. Jindal could seek to turn the heat up on these issues by reaching out to Senator Barack Obama and asking him to support Louisiana's rehearing petition.  Senator Obama was critical of the Kennedy ruling when it was handed down, and Gov. Jindal could reasonably assert that a "new" kind of politician (especially one with an impressive legal background and a former Constitutional Law professor) should be eager to get the Justices to fix significant errors in important opinions regardless of which political party may be more troubled by the errors.

Further still, Gov. Jindal might also reach out to other members of Congress to urge passage of a resolution encouraging the Justices to rehear Kennedy.  (Such a resolution would be akin to the concurrent resolution passed in July 2004 in the wake of the Blakely decision urging the Justices to swiftly consider Blakely's impact on the federal sentencing system).  After all, the national legislature should not be content to just sit on its hands when the nation's High Court bungles a key point about federal law in an important and high-profile case. 

Jindal_and_crist Of course, I am only scratching the surface here concerning what Louisiana's governor might consider if he is really committed to doing "everything" he can to see that the Kennedy decision does not stand:

Rush_and_jindalI seriously doubt that Gov. Jindal really will do "everything [he] can to see that this [Kennedy] decision does not stand."  In fact, I have a nagging feeling that Louisiana may not even file a rehearing petition, perhaps because the state's lawyers will conclude that it would be a futile effort.  Still, on the theory that politicians should not actively bash judicial rulings in public without being willing to also take efforts to raise their concerns directly to the court, I genuinely hope that Gov. Jindal (and Senator McCain) are interested here in more than just anti-SCOTUS political talking points.

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July 9, 2008 at 10:58 AM | Permalink


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Will you be policing all political hyperbole from now on?

Posted by: Steve | Jul 9, 2008 11:07:21 AM

Only as it relates to important issues of sentencing law and policy. I figure other bloggers can/will cover political hyperbole in other arenas.

More importantly, Steve, I think the political hyperbole in his context is especially pernicious if it is only intended to score political points at the expense of the judiciary. The legitimacy of the judiciary and respect for the rule of law is critically important (and perhaps in decline) throughout this country and the world. Judge-bashing is a very dangerous political sport.

Of course, the accuracy of the judiciary and respect for the factual and legal realities are also essentil to the legitimacy of the judiciary. And that's why I believe Louisiana and Gov. Jindal should push hard for rehearing and why one of the Justices in the Kennedy majority should have the courage to vote for rehearing.

Posted by: Doug B. | Jul 9, 2008 11:17:45 AM

Steve, the truest thing I have ever heard about the death penalty in litigating them for thirty years is that "Capital punishment is more a part of the political system than it is a part of the criminal justice system."

bruce cunningham

Posted by: | Jul 9, 2008 11:20:28 AM

Judge-bashing is a very dangerous political sport.

Although I could be misunderstanding you, I take this to mean that politicians shouldn't bash the judiciary because doing so might turn voters away. If that is so, wouldn't it be wiser to leave Gov. Jindal (and those politicians like him) to his own devices?

As you note, both John McCain and Barack Obama have indicated their opposition to Kennedy--why haven't you called them out for not pledging to confirm to the Court justices who would commit to overturning the decision?

As long as the judiciary as existed, there have been those who will seek to use criticism of it for political gain. Perhaps it is, as you suggest, a dangerous sport, but nonetheless it is repeatedly played around the country. I'm not sure it's much of a story that politicians exaggerate and, yes, even lie, when they think it suits their political ends.

Posted by: Steve | Jul 9, 2008 11:36:20 AM

Pushing for the death penalty for crimes that aren't murder is a bad idea in the first place. Where do you go from there, drug dealers over a certain limit, rapists and so on? These crimes may be deplorable, but if teh death penatly becomes normal for non-murder criminal offenses, we'll have a rash of people put to death for crimes they didn't commit because that option was available to the jury or the judge.

Posted by: JT | Jul 9, 2008 11:51:04 AM

Gov. Jindal could call on his state National Guard to invade the Supreme Court, or maybe he is persuading a nut or two the send the Court poisonous cakes.

Posted by: | Jul 9, 2008 12:21:32 PM

All of this dust up over an alternative holding.

Posted by: Not the same | Jul 9, 2008 12:28:10 PM

I find it really strange that people seem to be campaigning on a platform of “let’s appoint Suprem Court justices that will only pretend act with an open mind, but have already prejudged issues.” It would be far easier, I would think, to simply argue for a change in the constitution. Perhaps we could politicize the courts, but allow everyone on death row to campaign for their freedom via a tax-payer supported public relations firm.

Posted by: S.crotus | Jul 9, 2008 12:38:50 PM

Your blog is devoting far more time to this issue than it deserves. If Louisiana is really convinced that the "error" in the opinion (which is their own fault) can or should lead to a different result, they can file a request for a rehearing setting forth their legal argument. Lobbying political figures would be irrelevant to the issue, probably counterproductive, and possibly inappropriate.

Posted by: rn | Jul 9, 2008 2:06:35 PM

And how does the failure to add just 1 jurisdiction, the military code, on the side of authorizing (but never having used) death for crimes against children change the sum total to which the majority came in Kennedy? That's no basis for granting rehearing. At best, it supports a correction to the opinion, perhaps by adding a footnote.

Posted by: hcd | Jul 9, 2008 3:19:28 PM

The resolution should go further than that. it should declare that it is the consensus of the American people that the death penalty is not cruel and unusual punishment for all child rapists without exception, even if they don't kill or attempt to kill their victims.

Then they could stick that in their consensus pipe and smoke it.

Posted by: A.W. | Jul 9, 2008 5:21:45 PM

Actually Doug, the biggest threat to the rule of law in this country is simply the enormous amount of laws in this country. Moses was wise when he issued just ten commandments. A thing which is good in moderation can become a monster when done excessively. So while I respect you desire to increase the respect for laws, I think political bashing of the judiciary is a rather minor problem. Reducing the united states code to 100 pages would be much more effective in increasing respect for the law.

Posted by: Daniel | Jul 9, 2008 6:25:00 PM

Nah, the biggest threat to the rule of law in the country is non-lawyers and/or homeless crack whores.

Posted by: S.cotus | Jul 9, 2008 7:31:39 PM

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