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November 10, 2016

Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?

The question in the title of this post is prompted by my strong belief that Prez-Elect Trump is very likely to keep his campaign promise to pick a SCOTUS nominee from his list of 21 possibilities released during his campaign.  Ed Whelan has this helpful new post over at Bench Memos that sets out all the 21 names and their current positions as well as a reminder that Trump said this list "is definitive and [that he] will choose only from it in picking future justices of the United States Supreme Court."

As a fan and follower of federal sentencing law and policy, there are three names on the Trump lists that jump out to me immediately:

Senator Mike Lee, R-Utah

William Pryor, Eleventh Circuit

Amul Thapar, Eastern District of Kentucky

For complicated reasons that I do not think can be adequately and effectively explained in this forum, I am cautiously optimistic that the appointment of any of these gentleman could be a relatively positive development for the future of SCOTUS sentencing jurisprudence.  (Critical disclosure: my views here, at least for the two jurists above, are significantly influenced by my own personal and professional interactions. Judge Pryor and I have exchanged emails a few times (both before and since he became a member of the US Sentencing Commission), and Judge Thapar and I have met and spoken more than a few times (and he hired a former student of mine as an intern and also solicited me to write an amicus brief in a fascinating sentencing case a few years ago).)

Sadly, other than this trio, I am unfamiliar with the sentencing views and record of any of the other 18 persons on Prez-Elect Trump's SCOTUS (not-so-)short list. Ergo, I am uncertain about whether to be cautiously optimistic or pessimistic about what any other nomination could mean for the future of SCOTUS sentencing jurisprudence.  I am certain, though, that a whole bunch of journalists and lawyers and advocates are now starting the hard work of investigating (and perhaps formally vetting) every person on the Trump SCOTUS list.

I am hopeful that anyone with any relevant sentencing-related information about these folks will share that information in the comments here or via email/links.  I suspect Prez-Elect Trump will nominate a replacement for Justice Scalia within his first few days as president, and so I do not think it is too early to start gearing up for what should be an interesting and dynamic confirmation process.

November 10, 2016 at 01:40 PM | Permalink


I look at this from the vantage point of their views as a whole.

Posted by: Joe | Nov 10, 2016 1:45:23 PM

Let's hope each and every one of them would vote to overrule Zavydas v. Davis, a court decision that has led to a lot of victimization here in the USA.

Pryor would be a poke in the eye. Remember his SJC hearing where the 'rats tried to bust his chops over not wanting to take his kids to Disney?

Posted by: federalist | Nov 10, 2016 2:16:46 PM

Judge Pryor is reported as having said that Roe v. Wade was the "worst abomination in the history of constitutional law."

Posted by: Dave from Texas | Nov 10, 2016 2:24:15 PM

With respect to Senator Mike Lee has said, at a May 2016 event, he stated that it "has long been obvious that the Democratic Party’s assertion that the science of climate change is “settled” is little more than a cheap public-relations ploy masquerading as a monopoly on scientific knowledge.”

Posted by: Dave from Texas | Nov 10, 2016 2:27:37 PM

Senator Mike Lee (and most other Republicans), as well as President-Elect Trump (gasp!) believe that climate change is vastly overblown or even a hoax. They are wrong. Below are some of the impacts that are currently visible throughout the U.S. and will continue to affect these regions, according to the Third National Climate Assessment Report2, released by the U.S. Global Change Research Program:

The Arctic Ocean is expected to become essentially ice free in summer before mid-century.

Northeast. Heat waves, heavy downpours and sea level rise pose growing challenges to many aspects of life in the Northeast. Infrastructure, agriculture, fisheries and ecosystems will be increasingly compromised. Many states and cities are beginning to incorporate climate change into their planning.

Northwest. Changes in the timing of streamflow reduce water supplies for competing demands. Sea level rise, erosion, inundation, risks to infrastructure and increasing ocean acidity pose major threats. Increasing wildfire, insect outbreaks and tree diseases are causing widespread tree die-off.

Southeast. Sea level rise poses widespread and continuing threats to the region’s economy and environment. Extreme heat will affect health, energy, agriculture and more. Decreased water availability will have economic and environmental impacts.

Midwest. Extreme heat, heavy downpours and flooding will affect infrastructure, health, agriculture, forestry, transportation, air and water quality, and more. Climate change will also exacerbate a range of risks to the Great Lakes.

Southwest. Increased heat, drought and insect outbreaks, all linked to climate change, have increased wildfires. Declining water supplies, reduced agricultural yields, health impacts in cities due to heat, and flooding and erosion in coastal areas are additional concerns.

Posted by: Emily | Nov 10, 2016 2:45:54 PM

Judge William Pryor has a record of extreme opposition to abortion and the separation of religion and state. Pryor is fervently anti-choice. He has called Roe v. Wade "the worst abomination of constitutional law in our history." "Abortion is murder," he told a survey of state attorneys...I support the right to life of every unborn child." Pryor is an activist against choice, addressing rallies and working against choice in the courts.

Pryor has also campaigned to put religion into public life, including the public schools. He vigorously defends posting the Ten Commandments in the Alabama Supreme Court building and referred in one article to the "so-called wall of separation between church and state."

Addressing a rally in support of a judge sued for praying and displaying the Ten Commandments in his courtroom, Pryor asserted that "God has chosen, through his son Jesus Christ, this time and this place for all Christians...to save our country and save our courts." He called the day Roe was decided "the day seven members of our highest court ripped the Constitution and ripped out the life of millions of unborn children." And he ended one speech with the prayer, "Please God, no more Souters."

Posted by: anon3 | Nov 10, 2016 2:52:53 PM

Of course I vote for Mike Lee. How could anyone know what the new administration will do? It's all been so contradictory and over the years he's espoused distinctly opposite views on so many issues.

As for his comment about the settled science of climate change, the phrase "settled science" has always bothered me. It is especially bothersome when it is the constant mantra of celebrities. Science is never settled, scientific theories or discoveries are always building blocks to knowledge and repeatedly challenged and tested to get to the next level.

Posted by: beth | Nov 10, 2016 3:05:50 PM

I wasn't clear. I meant to say Lee's comment about climate change.

Posted by: beth | Nov 10, 2016 3:07:02 PM

Emily, I have a question for you--how quickly is CO2 removed from the atmosphere via natural processes?

Posted by: federalist | Nov 10, 2016 3:17:43 PM

Federalist, I don't know the answer to your question. But the answer may be in the following report:

"There are various ways in which experts propose to remove CO2. According to scientists, about one percent of the CO2 emissions can be used as raw material, rather than being emitted into the atmosphere and some pilot projects already exist.

Car manufacturer Audi uses CO2 to create so-called 'e-gas', an alternative to regular fuel. CO2 is reacted with hydrogen to produce synthetic methane, or 'Audi e-gas'. Methane is considered a greenhouse gas, but as the production of synthetic methane removes CO2 from the atmosphere, this e-gas is seen as an eco-friendly way of producing fuel.

CO2 is also being used in the chemical industry. Chemical company Bayer Material Science uses CO2 from coal-fired power plants for the production of plastic polyurethane, which is used to make the foam for mattresses.

Storing CO2

Another way of removing CO2 from the atmosphere is a process called Carbon Capture and Storage (CCS). Compressed CO2, usually waste from power plants or industry, is stored deep within the earth. Natural geological foundations, depleted oil or gas bearings can serve as storage sites. Still, storing CO2 permanently to mitigate emissions is a relatively new concept.

Norwegian oil company Statoil is a pioneer in this field. Kristof Hofer, a carbon capture storage expert at Statoil, says that in order for the technology to be used globally, the price of CO2 should not be lower than 40 to 50 euros per ton. "We need a high and stable price - that's the main requirement," he says.

One potential of the CCS technology is to capture emissions at power plants. Coal power plants usually emit CO2 into the atmosphere. When making use of the CCS process, instead of being released CO2 would be compressed and stored in the ground. However, this procedure increases the costs of the power plant drastically. This means the technology could not compete with renewable energy.

Nevertheless, IPCC-author and CCS-expert Manfred Fischedick recommends developing the technology further. ”One day we might have to retrofit existing plants with new technology to combat CO2 emissions,” he tells DW.

As with power plants, CCS could also be used at biogas plants. Plants use CO2 to grow, and store it as carbon. As plants are burned in biogas plants, the CO2 they captured is released into the atmosphere. But when using CCS, instead of releasing the CO2 into the atmosphere, it is put into the ground. Researchers at PIK see potential in this technology, but say it won't be enough to solve the CO2 issue.

Binding CO2 in soil
HTC Biokohle vom Feld

Could hydrochar save the planet?

Other methods of removing CO2 from the atmosphere include imitating natural processes, for example, through reforestation. Just like any other plant, trees capture CO2 and store it as carbon. This means that replanting trees will remove CO2 from the atmosphere.

Another natural process is the formation of humus – organic matter in soil. Created from dead carbon-storing plants, humus has the ability to store carbon.

Humus formation is a slow natural process, and one that can be accelerated and enhanced through a process called hydrothermal carbonization. During this process, plant residues and biowaste are processed using pressure and high temperatures. The end product is called 'hydrochar', which is rich in stable organic carbon, and can be used as soil amendment.

Hans-Josef Fell, a member of Germany's Green Party, sees great potential in this method. "Soil becomes more fertile and we can revegetate dry areas," says Fell. A couple of pilot projects already exist.

Fell promotes research and development in this sector. He sees the possibility to remove 200 gigatons of CO2 from the atmosphere within 30 years. "It would take about eight million hydrothermal carbonization plants in the larger industrial style," he says. "Within 30 years, we could then remove this amount of CO2 from the atmosphere and safely deposit it in the upper soil layers."

The German Institute for Economic Research (DIW) has also done research with hydrochar and sees its potential for saving the climate. However, research is still in the fledgling stages.

Still, despite these times of great innovative research, experts agree that the best strategy to stop global warming is not to remove CO2 from the atmosphere, but to avoid putting it out there in the first place. And they agree that using one of the new technologies won't be enough. There isn't a single silver bullet that will solve the problem."

Posted by: Emily | Nov 10, 2016 4:42:34 PM

my question was directed around natural processes---the answer--prodigious amounts--and the more CO2 in the atmosphere, the quicker it is removed (a natural buffer).

The bottom line--the models don't work--the hockey stick is hokum (um, it doesn't account for the LIE or the MWP). So, we don't even know: (1) how much AGCC is happening, (2) whether it's a net positive or negative, (3) whether humans can act effectively to stop it and (4) whether such actions would cause more harm than good and (5) whether the costs of doing something outweigh the costs of non-activity.

Doug, was Emily trolling?

Posted by: federalist | Nov 10, 2016 5:04:29 PM

Federalist, you and Mike Lee have much in common.

Here are the facts:
The current episode of global warming is attributed to increasing emissions of CO2 and other greenhouse gases into Earth's atmosphere. The global annual mean concentration of CO2 in the atmosphere has increased by more than 40% since the start of the Industrial Revolution, from 280 ppm, the level it had for the last 10,000 years leading up to the mid-18th century,to 399 ppm as of 2015. The present concentration is the highest in at least the past 800,000 years[6] and likely the highest in the past 20 million years.[7] The increase has been caused by anthropogenic sources, particularly the burning of fossil fuels and deforestation. The daily average concentration of atmospheric CO2 at Mauna Loa Observatory first exceeded 400 ppm on 10 May 2013. It is currently rising at a rate of approximately 2 ppm/year and accelerating.1] An estimated 30–40% of the CO2 released by humans into the atmosphere dissolves into oceans, rivers and lakes,[12][13] which contributes to ocean acidification.

Posted by: Dave from Texas | Nov 10, 2016 5:29:38 PM


"Burning fossil fuels such as coal and petroleum is the leading cause of increased anthropogenic CO2; deforestation is the second major cause. In 2010, 9.14 gigatonnes of carbon (33.5 gigatonnes of CO2) were released from fossil fuels and cement production worldwide, compared to 6.15 gigatonnes in 1990.[73] In addition, land use change contributed 0.87 gigatonnes in 2010, compared to 1.45 gigatonnes in 1990.[73] In 1997, human-caused Indonesian peat fires were estimated to have released between 13% and 40% of the average carbon emissions caused by the burning of fossil fuels around the world in a single year.[74][75][76] In the period 1751 to 1900, about 12 gigatonnes of carbon were released as carbon dioxide to the atmosphere from burning of fossil fuels, whereas from 1901 to 2008 the figure was about 334 gigatonnes.[77]
CO2 in Earth's atmosphere if half of anthropogenic CO2 emissions are not absorbed.[78][79][80][81]
(NASA computer simulation).

This addition, about 3% of annual natural emissions, as of 1997, is sufficient to exceed the balancing effect of sinks.[82] As a result, carbon dioxide has gradually accumulated in the atmosphere, and as of 2013, its concentration is almost 43% above pre-industrial levels.[9][19] Various techniques have been proposed for removing excess carbon dioxide from the atmosphere in carbon dioxide sinks.

Carbon dioxide has unique long-term effects on climate change that are largely "irreversible" for one thousand years after emissions stop (zero further emissions) even though carbon dioxide tends toward equilibrium with the ocean on a scale of 100 years. The greenhouse gases methane and nitrous oxide do not persist over time in the same way as carbon dioxide. Even if human carbon dioxide emissions were to completely cease, atmospheric temperatures are not expected to decrease significantly in the short term.[83][84][85][86]

On 12 November 2015, NASA scientists reported that human-made carbon dioxide (CO2) continues to increase above levels not seen in hundreds of thousands of years: currently, about half of the carbon dioxide released from the burning of fossil fuels remains in the atmosphere and is not absorbed by vegetation and the oceans."

Federalist, do you believe in gravity?

Posted by: Peter | Nov 10, 2016 5:32:36 PM

Federalist, you are a smart guy. What do you make of the following:

"Climate change has already touched almost all life on the planet, even under moderate rates of global warming, according to a report published Thursday in the journal Science.

An international team of researchers found 82 percent of key biological processes necessary for healthy ecosystems had been impacted by the phenomenon. The changes have been felt even though the world is just 1 degree Celsius warmer than pre-industrial levels.

“We’re already seeing salamanders shrink in size, we’re seeing migratory birds change their migratory routes, we’re seeing species interbreeding now, because of just a small degree of warming,” said James Watson, a professor at the University of Queensland and senior author of the report.

Scientists are currently gathered in Marrakech, Morocco, to work out details of the landmark Paris climate agreement, which aims to keep the world from warming more than 2 degrees Celsius. Anything hotter than that will likely cause a slew of troubling events: melting glaciers, rising seas, extreme weather and an uptick in disease.

But aside from severe impacts for humanity, those shifts will drastically change worldwide biology.

It’s not just polar bears that are being affected by climate change.

“The fact is, it’s not one or two species in one or two places,” Watson said. “It’s entire systems and entire processes. All the things which live in those systems are almost certainly changing their behavior, the way they breathe, the way they move.”


Leading environmental groups have stressed the need for urgency in curbing greenhouse gas emissions.

“The climate crisis is already having very serious consequences for life on the planet,” said Jean Su, associate conservation director at the Center for Biological Diversity. “The 1-degree Celsius rise in temperature already has the world spinning out of control in terms of the widespread harms to species, and also people ... The need for strong climate action couldn’t be clearer or as necessary as right now.”


Watson said the report was “not just doom and gloom,” noting there was still time, albeit limited, to act on “low-hanging fruit” like environmental protection and investment in renewable energy. But ecosystems will only tolerate so much.

“There’s no doubt we’re in for dramatic warming still,” he said. “We’re literally going into climatic spaces that are beyond the norm. With another degree, it’ll almost certainly be 100 percent of species affected. What we don’t know is how those species are going to react.”

Posted by: anon1 | Nov 10, 2016 5:40:09 PM

How the hell did we get to talking about global warming on a sentencing blog?

Posted by: Fat Bastard | Nov 10, 2016 5:56:32 PM

Exactly the question I was thinking, Fat Bastard, and I have let the thread unfold to see how long it would take for someone to wonder this out loud. Relatedly, the abortion discussion also revealed that I may be the only one who will react to the SCOTUS nomination with sentencing issues in mind.

That all said, I suppose I should be gratified to discover at this point that nobody has anything bad to say about Judge Thapar, who would be my first choice based on his experiences as a trial judge (as well as his diverse background).

Posted by: Doug B. | Nov 10, 2016 6:26:02 PM

Wasn't it warmer on earth during MWP? And what if upward pressure on temps is mitigated by what would be a natural cooling trend (we are in the middle of ice ages)?

As for CO2 from atmosphere--um, guys, how much natural CO2 is put into the atmosphere each year, and somehow co2 concentrations are in the ppm? Prodigious amounts of CO2 are removed from the atmosphere by natural processes.

Maybe you guys should answer my five questions . . . .

Posted by: federalist | Nov 10, 2016 7:11:57 PM

The thread makes sense because we aren't merely concerned with choosing a judge to the Sentencing Court or something. We are picking a key vote that will decide a range of issues. I stick by my first comment & would choose a true libertarian of the sort that doesn't think basic control of one's body is horrible. And, yeah, science is relevant there, since that issue will come up in various ways. etc.

Posted by: Joe | Nov 10, 2016 7:15:34 PM

As the vote stands now, Hillary has almost 300,000 more votes than Trump. The Republicans have said that the "people should have the final voice on who gets to choose". Well the people have spoken: Hillary has by far the most votes. But since she can't nominate anyone, we have to wait (as the Repbulicans have said) until the next election.

Posted by: anon | Nov 10, 2016 8:25:21 PM

I agree with Beth and federalist on this issue. Climate change is happening because duh climate change is happening all the time. The crucial question is: what is man's role in the affair and is he making it worse or better? That question is, as Beth correctly points out, by no means "settled." Moreover sentences like this make no scientific sense: "The current episode of global warming is attributed to increasing emissions of CO2 and other greenhouse gases into Earth's atmosphere." Attribution is not a scientific concept. Scientists speak in terms of causation and/or correlation. So which one is it? If it is just correlation well then correlation is not causation. And it can't be causation because there are no double-blind experiments performed with the world's weather.

So the only foundation for making claims about climate change is modeling yet I can take a model and massage it parameters to produce any outcome I want. So tend to agree with Lee that climate change is mostly a scam.

Posted by: Daniel | Nov 11, 2016 11:40:50 AM

Daniel and Federalist, Greetings!. Interesting digression on this sentencing blog. Thought I’d way in in light of Daniel’s assertion that climate change appears to be a “scam.” It’s true that correlation does not mean causation. But if we wait for a double blind test (as with new drugs), I’m afraid we’ll wait forever. I’m getting old enough now so that any climate change worst case scenarios won’t affect me. I am concerned, however, about the world that my daughter and her children will face. In any event, I went to the NASA website at http://climate.nasa.gov/evidence/ and found the following points that do seem to support the reality of climate change and of man's contribution to it. Welcome your thoughts.

1. Global sea level rose about 17 centimeters (6.7 inches) in the last century. The rate in the last decade, however, is nearly double that of the last century.

2. All three major global surface temperature reconstructions show that Earth has warmed since 1880. Most of this warming has occurred since the 1970s, with the 20 warmest years having occurred since 1981 and with all 10 of the warmest years occurring in the past 12 years.6 Even though the 2000s witnessed a solar output decline resulting in an unusually deep solar minimum in 2007-2009, surface temperatures continue to increase

3. The oceans have absorbed much of this increased heat, with the top 700 meters (about 2,300 feet) of ocean showing warming of 0.302 degrees Fahrenheit since 1969.

4. The Greenland and Antarctic ice sheets have decreased in mass. Data from NASA's Gravity Recovery and Climate Experiment show Greenland lost 150 to 250 cubic kilometers (36 to 60 cubic miles) of ice per year between 2002 and 2006, while Antarctica lost about 152 cubic kilometers (36 cubic miles) of ice between 2002 and 2005.

5. Both the extent and thickness of Arctic sea ice has declined rapidly over the last several decades.

6. Glaciers are retreating almost everywhere around the world — including in the Alps, Himalayas, Andes, Rockies, Alaska and Africa

7. The number of record high temperature events in the United States has been increasing, while the number of record low temperature events has been decreasing, since 1950. The U.S. has also witnessed increasing numbers of intense rainfall events.

8. Since the beginning of the Industrial Revolution, the acidity of surface ocean waters has increased by about 30 percent. This increase is the result of humans emitting more carbon dioxide into the atmosphere and hence more being absorbed into the oceans. The amount of carbon dioxide absorbed by the upper layer of the oceans is increasing by about 2 billion tons per year

9. Satellite observations reveal that the amount of spring snow cover in the Northern Hemisphere has decreased over the past five decades and that the snow is melting earlier

Posted by: Michael R. Levine | Nov 11, 2016 1:13:05 PM

I won't try to weigh in on the science but various of the policies that would help assumed global warming seems to me useful at any rate. Less reliance on fossil fuels, reduction of pollution generally etc. has value here with or without global warming.

The specific issue is a not THAT germane though I do think some basic understanding of science would be helpful when judging in the 21st Century as Breyer notes in regard to the separate issue of foreign affairs of various types (see, e.g., his recent book).

Posted by: Joe | Nov 11, 2016 2:02:58 PM

@Mr. Levine

"It’s true that correlation does not mean causation. But if we wait for a double blind test (as with new drugs), I’m afraid we’ll wait forever."

I concur. The scam part about global warming isn't the policies that are proposed to solve it, the scam part is trying to give a gloss of scientific certainty to something that isn't certain. I am sympathetic to the line of argument that your propose that it is simply too risky and that it would be a terrible result if we found out 100 years down the line there were things we could have done to prevent global warming and didn't. I understand the power of what psychologists call "regret avoidance". So I am not saying that as a matter of public policy we should do nothing, I am saying we should stop demonizing people who disagree with certain environmental policies because they have a different risk/reward profile.

As to the data points you elucidate my response is that they produce a scattergram. A scattergram with a trend line is not causation. Moreover, it is correlation over what in climatic terms is a minute time period. This leads us right back into a discussion about risk.

You know, in the recent election Nate Silver kept reminding people that the large number of undecided voters in the electorate so close to the election date significantly increased the amount of uncertainty in the election. No one wanted to hear that--they laughed at him. Then Trump won and they all had egg on their face. It's the same with climate science--people don't like to think in terms of risk, they like to think in terms of certainty. And so some environmental groups give them what they want and pretend that there is no uncertainty in the system. Rubbish. That's just not how science works.

Posted by: Daniel | Nov 12, 2016 4:58:03 PM

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