Two great commentaries from the legal blogosphere

Because there is too much great legal commentary in the blogosphere these days to keep up with it all, I have to highlight two recent posts that should not escape the eyes of sentencing fans. 

First, this post at Judging Crimes has lots of great things to say about the importance of Judge Sotomayor's experience as a district judge (and other great insights).  Here is one amusing snippet:

Appellate judges who don't first serve as trial judges are prone to stupid decisions.  Not because the judges themselves are stupid, of course, but because they literally don't know what they're doing. Example: Scalia insisting that his 2006 Davis decision imposed a constitutional test that was "objective and quite 'workable'." 

After three years, that test has come to mean something different in every state -- literally, without exaggeration, different in each of the 50 states.  It produces contradictory results on a daily basis.  It's become a constitutional Rorschach test, revealing judges' biases with hi-res fidelity.

So was Scalia lying?  Of course not.  How could he have known enough to be able to lie about what he was doing?  He's never been a trial judge, never practiced criminal law, and hasn't practiced any kind of law since 1967.  He was just guessing.

Trial court experience is far more important than appellate experience to a nominee's success as a justice.  More is at stake than the difference between pondering an evidentiary question after reading exhaustive appellate briefs versus making a decision during a whispered bench conference, though of course that's a lot. 

Second, this post at Pardon Power justifiably calls out President Obama for failing to give any attention to clemency matters while being able and eager to do so much else.  Here is the start and end of the post:

132 days into his administration Barack Obama continues to distinguish himself as one of the slowest presidents in history when it comes to the use of federal executive clemency. With the number of clemency applications soaring, prison populations booming and increased concern over issues such as mandatory minimum sentences, the Obama Department of Justice cannot account for a single pardon or commutation of sentence. In the Republic's 220 years, only seven administrations have been slower.  Among modern presidents, Obama is in an even smaller class -- with Eisenhower (R), Nixon (R), George H.W. Bush (R), George W. Bush (R) and Bill Clinton (D).  Obama will pass Eisenhower in just a couple of months. See chart here.

Too much on the plate?  Hard to imagine Lincoln, Wilson and FDR had it easy.  Not to mention they didn't have nearly as many career employees in the federal bureaucracy to assist them.  Remember, Obama is conspicuously proud of his supposed ability to "do more than one thing at a time."...

What to expect?  At this point, there is really very little reason to expect anything different from Obama.  Pardons and commutations will come, eventually.  Indeed, for all we know, Mr. Obama may wind up granting more pardons than any president in history.  But the fact remains that the longer he waits to exercise the pardon power, the more of an afterthought it will appear to be.  And, if he decides to spit out pardons in the month of December and in the last year of the term, clemency will continue to be viewed as a "gift," especially for partisan supporters, cronies and those with access to the White House in the chaotic last days of an administration.