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November 11, 2008

Why federal sentencing reformers must focus on the USSC and lower courts

This new article from Tony Mauro, along with the Supreme Court's refusal yesterday to consider a pair of victim impact capital cases (basics here), highlights one of many reasons that would-be sentencing reformers should ignore post-election buzz about possible Supreme Court transitions.  Here is a snippet from the piece:

Conventional wisdom, accelerated by Barack Obama's victory Nov. 4, has [Justices] Ginsburg, Stevens and Justice David Souter, all on the moderate-liberal wing of the Court, heading for the exits during Obama's first term.

As the theory goes, all three justices would be happier being replaced under Democrat Obama than they would have been under Republicans John McCain or, for the last eight years, President George W. Bush.  Names of possible replacements for the three are bandied about as often as candidates for Obama's Cabinet.

But as Ginsburg's broadly dropped hints suggest, justices don't always follow political timetables for their departures. They often remain as long as they feel their health and their work product are still good.  The political persuasion of the president, while sometimes a factor justices consider in timing their departures, rarely is decisive.

Though I think it likely that President-Elect Obama will get to replace at least Justice Stevens in the not-too-distant future, it is almost impossible to imagine a replacement that will be as pro-defendant as Stevens has become on sentencing issues.  Thus, for folks interested in sentencing issues, any likely SCOTUS transitions may actually move the Court slightly to the right on sentencing issues.

These dynamics are reversed, however, when it comes to the US Sentencing Commission and lower federal courts.  Though the USSC has been a very moderate and responsible institution over the last few years, the appointment of new Sentencing Commissioners could potentially move the USSC to the left and could make the USSC a more vocal advocate for systemic reforms to the entire federal sentencing structure. 

Similarly, though I do not expect President-Elect Obama to look for judicial nominees who will ensure the "mass freeing of criminal defendants" as some have predicted, I do expect the average Obama nominate to be somewhat more defendant-friendly than the average Bush nominee (and even more defendant-friendly than the average Clinton nominee).  Especially because federal district and circuit courts are going to define the doctrines and realities of federal sentencing as long as Booker is the law of the land, federal sentencing reformers should give particular attention to the names and backgrounds of those persons who are discussed for lower federal court positions in the weeks and months ahead.

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November 11, 2008 at 10:02 AM | Permalink


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Not only is there the issue on the Supreme Court, but Bush's appointees on every level of the Federal Courts will be there for decades. Eight years worth of appointees (not counting Bush 1 and Reagan's remaining judges) may create an incredibly conservative court with a liberal legislature.

Posted by: JT | Nov 11, 2008 10:33:49 AM

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