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September 27, 2010

Senator Jeff Sessions asks circuit nominee if she will "follow the federal sentencing guidelines"

Perhaps this is not news to those following the latest federal judicial confirmation battles closely, but I found notable this new report from the Connecticut Law Tribune concerning the Senate questioning of Second Circuit nominee Susan Carney earlier this month.   Specifically, this report on some back-and-forth with Senator Jeff Sesssion got my attention:

Sessions lectured about the importance of judges following higher courts’ dictates, and those of Congress. He told Carney that if she’d been a trial lawyer or a judge, she would know certain things from experience. “[A] lawyer who’s practiced a lot, or a judge who’s been on the bench for a while, I think understands that they’re not policy-setting officials,” said Sessions.

He then pointedly asked Carney if she would follow the federal sentencing guidelines.

Carney was agreeable, to a point.  She commended the guidelines for bringing “important consistency.”   She also told Sessions that she is familiar with the 2005 U.S. Supreme Court case of U.S. v. Booker, which held the sentencing guidelines interfered with the Sixth Amendment right to a fair trial, and were no longer mandatory.

Sessions, possibly hinting at her confirmation, responded, “I hope that as you wrestle with those issues before you, you realize there is a danger in deferring too readily to the unsupported views of a trial judge who just is not willing to be consistent.”

September 27, 2010 at 02:22 PM | Permalink


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If the guidelines were made more rationale, judges would have no need to question them under 3553(a). In the battle of power vs. persuastion, the latter is always the more desireable. Don't strong-arm judges into following the guidelines, when the correct answer is to make more sensible guidelines. It's not "the unsupported views" of trial judges he should be worried about, but that of the same being found in the Guidelines.

Sesssions is upset that the Emperor Guidelines are (in particular cases) being called out as having no clothes!

Posted by: DEJ | Sep 27, 2010 3:28:52 PM

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