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May 18, 2013

"Crackheaded Ruling by Sixth Circuit"

The title of this post is the headline of this new commentary by Ed Whelan at the National Review Online concerning yesterday's suprising split panel ruling by the Sixth Circuit in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (opinion here; my commentary here).  Here are excerpts from Whelan's take:

[I]n an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman....

Under [the panel majority's] illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

Unsurprisingly, folks at the ACLU and FAMM have a much different perspective on the Sixth Circuit panel majority's work in Blewett.  Here are the titles and links to the press releases coming from these groups:

For legal, policy and practical reasons, it should be very intriguing to watch closely just where, when and how the Justice Department and others are going to argue that the majority in Blewett really blew it.

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May 18, 2013 at 12:02 PM | Permalink


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To paraphrase what I've said before, what is it about Democrats and criminals?

Posted by: federalist | May 18, 2013 2:03:16 PM

If the ruling is right, as FAMM says it believes, then it should be eager for, not fearful of, further review. After all, the only way to make it apply nationwide is for the SCOTUS to ratify it on the merits.

Q: So why wouldn't FAMM want that?

A: Because FAMM knows it's wrong, and that as soon as it hits the SCOTUS, it's goner.

Posted by: Bill Otis | May 18, 2013 4:13:53 PM

DOJ fights nearly every defendant's petition for cert. Shouldn't they be "eager for further review"? Of course not. No one who wins at lower level wants further review. Why hold FAMM to a different standard?

Posted by: Thinkaboutit | May 18, 2013 5:01:23 PM

Thinkaboutit --

Because FAMM is not like an individual criminal defendant. It's an institutional litigant with a national agenda. It falls well short of its goal if this ruling applies only in the Sixth Circuit. In order to get nationwide application, it has to go to the Supremes. And if it's confident the ruling is correct, it should be chomping at the bit to get there.

The reason that instead it wants to avoid further scrutiny of this thing is that it knows it pulled a fast one with a particularly good (for it) panel.

Posted by: Bill Otis | May 18, 2013 5:18:13 PM

If Blewett was a capital case and the law changed so that the offender could no longer be sentenced to death, would you still require the Blewetts die at the hands of the government or that they get the benefit of the change in the law? If you wouldn't do it in a capital case why do it in a crack case. Let the change in law be retroactive. It save the taxpayers money and really isn't a windfall for defendants.

Posted by: ? | May 18, 2013 6:14:36 PM

? --

Whether I would "want" a defendant to "die at the hands of the government" would depend on what he did.

Whether the law would authorize him to "die at the hands of the government" would depend, not too surprisingly, on what the law says, which varies from jurisdiction to jurisdiction.

Posted by: Bill Otis | May 18, 2013 6:30:29 PM

"what is it about Democrats and criminals?"

What is it about Republicans and war criminals?


Posted by: anon | May 18, 2013 8:13:37 PM

I don't know anon, it wasn't Bush who ordered a 16 year old boy (and an American citizen) to be whacked simply because of who his father was. And last I checked it wasn't Bush who released a Lebanese war criminal who tortured and murdered five American soldiers--check out the Ali Musa Daqduq case--and by the way libs, that's on you. You voted for that "patriot."

It is funny watching Democrat judges like Martin and Merritt blithely ignore the law to help out a criminal.

Posted by: federalist | May 18, 2013 9:08:52 PM

You're right, it wasn't Bush who released Ali Musa Daqduq. It was the government of Iraq, over the Obama Administration's objections. http://www.nytimes.com/2012/11/17/world/middleeast/iraq-said-to-release-hezbollah-operative.html?_r=0

Posted by: Anon | May 19, 2013 8:56:21 AM

Anon, I'd laugh--except it's not really all that funny. Ali Musa Daqduq was held by the US--and the "patriot" handed him over to the Iraqis, who, as was known the the "patriot" were going to release him.

So the "patriot"--instead of obtaining justice for five murdered American servicemen, decided to let him go. Nice work.

Your pathetic defense is an embarrassment. Once again, what is it about Democrats?

Posted by: federalist | May 19, 2013 9:57:50 AM

This is the first anon. Reagan facilitated a genocide in Guatemala, and last week's conviction makes it official. I don't hear you and your buddies calling for Rios Montt to be executed. I don't hear you calling for an investigation into any living members of the Reagan administration who may have been complicit. If we were talking about Bill Clinton or Jimmy Carter, you people would be all over it. If we were talking about Obama, you people would probably be rioting in the streets.

Posted by: anon | May 19, 2013 11:32:42 AM

It wasn't Obama who received and ignored a brief titled, "Bin Laden Determined to Strike in U.S." 36 days before 9/11.

Posted by: Anon | May 19, 2013 12:23:12 PM

I'm going to try to remember this the next time some lefty takes a crack at a conservative for commenting off topic.

Posted by: Bill Otis | May 19, 2013 1:50:33 PM

Funny how they scurry like rats instead of defending Obama's decision to hand over Daqduq.

Posted by: federalist | May 19, 2013 3:43:14 PM

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