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August 27, 2008

Wondering what a Justice Clinton might say about sentencing jurisprudence?

Though I have not watched all of the Democratic convention, I think I am right to assert that Senator Hillary Clinton was the first headliner to mention the Supreme Court in her speech.  (Describing the state of the country, she said the Supreme Court is "in a right-wing headlock.")  That fact alone got me thinking again about the (very real?) possibility of a President Obama nominating Senator Clinton to fill an opening on the Supreme Court.

Lots might be said about the political virtues (and vices?) or such a nomination and also about whether the Obama team might encourage pre-election political buzz about this possibility.  (A great retort to the failure to pick/vet Senator Clinton from the Obama team would be that we did not want to prevent her from being available for the first SCOTUS opening.)  Lots also might be said about how a Justice Clinton would approach the future of Roe v. Wade and federal regulatory power. 

But, in this blog setting, I would love reader speculation on a Justice Clinton and sentencing law and policy.  Specifically, how do we think a Justice Clinton would sort out enduring Blakely and Booker issues?  How about death penalty issues or sex offender residency restrictions or severe mandatory minimum sentencing terms?  Of course, we have some sense of what Hillary Clinton the politician thinks about some of these issues, but I do not think we should readily assume a Justice Clinton would take the same approach.

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August 27, 2008 at 09:04 AM | Permalink


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I think there’s a better chance of me being put on the Supreme Court than Clinton.

That being said, if she were appointed, I’m sure she’ll continue to be a gutless coward. She’ll push reform in areas pertaining to children and women, but be “judicially modest” in other areas, including sentencing issues. In other words, I doubt she’ll want to waste any energy on criminal issues (since criminals are typically neither women nor children). I’m sure she’ll be content to do whatever the department of justice thinks she should do.

Posted by: Not the same | Aug 27, 2008 9:36:20 AM

Could you imagine Hillary Clinton agreeing never again to hold an indignant press conference about an issue, attend a partisan fund-raiser or speak at a Democratic national convention?


Posted by: KipEsquire | Aug 27, 2008 10:46:53 AM

And I thought speculation about the causes of plane crashes before the bodies are even cold was pointless. History does not provide an reassurance that what a person says politically has any value in determining what they do judicially. Sometimes they match, sometimes they don't.

I also agree that Clinton has zero chance of being on SCOTUS, because they is nothing in her career path that would suggest she either has an interest or wants the position. She has much more power repeating "I got 18 million votes" in the Senate than she ever will on SCOTUS.

Posted by: Daniel | Aug 27, 2008 10:47:09 AM

Hillary Cinton would make a superb Justice. She has a powerful and pentrating intelligence. She would bring the real world back to the court. In my view, she would be a female Brandeis.

Posted by: Michael R. Levine | Aug 27, 2008 5:09:03 PM

It is easy enough to imagine the major theme of that confirmation hearing: "the proper judicial temperament."

Posted by: P.S. Ruckman, Jr. | Aug 27, 2008 5:18:37 PM

I doubt Sen. Clinton would be interested since she is apparently thinking of running for President, again. Also, while I supported her politically, I don't know how would she handle the job considering she had never been a judge at the lower court level and hasn't been actively practicing law, I don't think, for some time. I am sure she has good command of constitutional law, but still, I'd be concerned about the lack of experience of being a judge and writing opinions.

I've heard President Clinton being mentioned as a possible candidate. I'd have the same reservations about him.

Posted by: Gene | Aug 28, 2008 1:35:23 AM

Okay Hillary fanatics ("superb Justice", tee hee), the Professor's question was what would Justice Clinton do about sentencing?

How quickly all of you adulators forget that Clinton was the LONE democratic candidate to come out against crack retroactivity, how she has talked extensively about "getting tough" with "sexual predators" (what's next? exile to the Moon?), she continues to speak glowingly about her hubby's track record on crime and punishment, including the pernicious EDPA, and consistently sounds like a far-right republican with doozies like the following: "We need more police, we need more and tougher prison sentences for repeat offenders. The three strikes and you’re out for violent offenders has to be part of the plan."

Hillary is about as progressive on justice issues as Ronald Reagan, so let's just be honest.

Posted by: dweedle | Aug 28, 2008 9:11:00 AM

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