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September 18, 2009

Judge Gerard Lynch becomes first lower-court Obama nominee confirmed by Senate

As detailed in this pieceavailable at law.com, the "Senate on Thursday confirmed Gerard Lynch for the 2nd U.S. Circuit Court of Appeals, giving overwhelming approval to the Southern District of New York judge who presided over cases involving former basketball coach Isiah Thomas and recording artist Lil' Kim."  Though Judge Lynch was elevated by a vote of 94-3, few future nominees seem likely to generate so much consensus:

While the nomination generated no significant controversy, the two parties made clear that future confirmations will turn into ideological battles in the Democratic-controlled Senate.  The Judiciary Committee chairman, Patrick Leahy, said Republicans have been using Senate rules to block votes on judicial nominees while vacancies mount. There are 20 vacancies on the regionally based federal appeals courts and another 72 for the lower district courts.  "We should not have to overcome filibusters and spend months seeking time agreements to consider these nominations," Leahy said. "It is imperative that we move to fill the growing number of vacancies throughout the federal courts."

Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, said that while he backed Lynch, "We're seeing a pattern of nominees who believe they have the power to amend the Constitution."  Sessions voted against Lynch in 2000 when he was confirmed as a U.S. District judge, but said he is now satisfied that Lynch is not a judicial activist.

Judge Lynch went down so smooth in part, no doubt, because of his history as a crime-fighter:  "He has served as a federal and New York state prosecutor, chief counsel for the New York State Commission on Government Integrity and an associate counsel in the Iran-Contra independent counsel's office."

Over at How Appealing, this post provides links to more press coverage of this notable first.  And, as detailed in this prior post, Judge Lynch has an interesting and impressive record on sentencing issues.  Moreover, as documented in lots of prior posts linked below, the broader issues surrounding Obama lower court nominees ought to be of great interest to sentencing fans:

September 18, 2009 at 08:54 AM | Permalink


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Judge Gerard Lynch is a fine jurist. I enjoy his erudite opinions and common sense. I was in prison with the only real "drug lord" I ever saw in a Federal prison. Jorge had been sentenced by Judge Lynch in a fascinating situation. Jorge's "relevant conduct" was over 400,000 pounds (about 175,000 kilos) of cocaine, with a wholesale value approaching $900 million! The 35 year old Mexican defendant had been kidnapped out of Belize by the D.E.A. in the middle of his criminal trial there. The U.S. Supreme Court has held that it is okay for our Government to kidnap people from foreign countries and bring them here for prosecution. He was brought to the Southern District of New York for Federal indictment and trial. The Feds wanted him to plead guilty and debrief (cooperate, rat), to help the Government arrest and incarcerate many other high level cocain lords. Jorge couldn't really debrief, however, because if he did, the other drug lords would have killed his entire family in Mexico. Since he couldn't come to terms with the Gov. on a plea agreement that didn't include his cooperation, he made a blind guilty plea to Court, without any agreement with the Gov., and thus no obligation to cooperate. He received a 3 point downward adjust in his Sentencing Guidelines calculation, for acceptance of responsibilty. That adjustment took him down to a sentencing range below a life sentence. The Justice Department was pissed off that Jorge wouldn't cooperate, so they flew a lawyer from D.C. to N.Y.C. for his sentencing hearing, to argue that Judge Lynch should deny him the 3 point adjustment because he wouldn't cooperate. The D.O.J. argued that Jorge should still receive a life sentence, despite his guilty plea. Judge Lynch refused, and sentenced Jorge to about 38 years instead of life. Since Jorge was only 35 then, he may actually live thru his prison senttence, to emerge as a 70 year old man. Judge Lynch explained to the D.O.J. on the record and in his written sentencing opinion (which can be found on WESTLAW) that as a matter of law, receiving a 3 point downward adjustment for "acceptance of responsibility" only requires a guilty plea, not cooperation and debriefing. Second, Judge Lynch explained to the D.O.J., if I did what you are asking, we would end up having to try all of these drug cases for the men you kidnap out of foreign countries and bring to N.Y.C., since the defendants would know that they were going to still receive a life sentence even if they pleaded guilty (without cooperating); thus, they would all roll the dice on trial and cause millions of dollars of time and resources to be unnecessarily expended. What nice common sense analysis! Lynch might eventually go to the U.S. Supreme Court; keep your eye on him.

Posted by: Jim Gormley | Sep 18, 2009 12:18:06 PM

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