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July 11, 2018

Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work

Over at his SDFLA Blog, David Oscar Markus has this helpful new post titled "A look into some of Judge Kavanaugh's criminal justice opinions." I recommend the whole post, and here are two particular opinions flagged there that ought to be of particular interest to sentencing fans: 

1. Acquitted Conduct. Many people, lawyers and non-lawyers alike, are shocked that sentencing judges are permitted to use acquitted conduct in fashioning a federal sentence. Kavanaugh wrote about the practice here in a thoughtful concurrence (in denying en banc review) shortly after Blakely and Booker. He said that although the law currently permits it, district judges have the discretion NOT to use acquitted conduct and his advice is that they should NOT use it at sentencing.  Here's a portion:

Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?....
3. Sentencing.  Here's a dissent in which Kavanaugh sides with the Government, calling the majoirty opinion "confounding." The majority opinion explains that the district judge did not adequately explain the upward variance. Kavanaugh disagrees: "Seizing on the Guidelines range as if it were talismanic (which it is not post-Booker), the majority opinion concludes that the District Court committed procedural error by failing to adequately explain Matthews’ above-Guidelines sentence. I disagree."

I am inclined to mostly agree with David's post's overall assessment of Judge Kavanaugh: "So after reading these opinions, my take is that Kavanaugh appears to be more in line with Roberts.  He won't be a Scalia and he won't be an Alito.  But he'll probably be more sympathetic to criminal justice issues than Kennedy was."  But I would add that I expect Judge Kavanaugh to be less sympathetic to capital defendants that Justice Kennedy has been, but possibly just a bit more sympathetic to some (but not all) others. 

A few related posts:

July 11, 2018 at 10:11 AM | Permalink


no mention of what (I am going to argue) should be a major focus for criminal justice advocates with regards to Judge Kavanaugh; Mistretta v. United States and separation of powers.

Prior to Kennedy's retirement I knew of Judge Kavanaugh only that he was a Court of Appeals judge on the D.C. Court. After his name was chosen I browsed Lexis and saw in his writing that separation of powers was a major focus. He discusses his philosophy at length in a Keynote Speech at Notre Dame University, and his opinions from the bench are often directed at problems with administrative agencies, such as the PHH v. CFPB case. I did a search of all his opinions in which "Mistretta" was mentioned, but only found about 4, and in them it was only cited for a tangential claim about novelty.

With that said, if the Court is going to take a more critical look at challenges to the very constitutionality of administrative agencies, then it might be strategic to wait and see what kind of rationale and arguments are used by the Court in these cases. The rationale could then be adapted as counter-arguments to the Mistretta majority's reasoning, combined with the arguments Scalia made in his dissent.

I don't know how successful this would be as I would need to see how the Court rules in other separation of powers cases. Additionally, I'm not quite sure what a post-Sentencing Commission system would look like, other than it resulting in Bill Otis going back to blogging. Maybe that in and of itself is enough to just forget the whole idea...

Posted by: anonuser879 | Jul 11, 2018 11:05:45 AM

There are specific issues that Justice Kennedy was particularly interested in that I don't expect Kavanaugh to follow through on. Graham/Miller and death penalty in intellectual disability cases come to mind. One interesting area that he wanted explored but never got a chance was Solitary Confinement. I'm not sure a future Justice Kavanaugh would go down that path, but it would be an interesting one.

Otherwise, I tend to agree with the Chief Justice Roberts comparison for Judge Kavanaugh. He strikes me as conservative, functionalist over formalist, but no real outlier opinions.

Posted by: Erik M | Jul 11, 2018 11:30:46 AM

Let me explain acquitted conduct.

A drug kingpin is holding a witness's family hostage back in the old country.

Or, see this scene from the Sopranos. Two thugs insist on paying for a juror's kid's candy bar, because they think his jury service is just great. He gets the message. There is a hung jury from one hold out vote.


You lawyers know nothing about real life. This pro-criminal, rent seeking, Yale radicalized weasel, Kavanaugh, is the standard issue lawyer, swamp creature, a RINO, a toxic threat to our country.

What are you lawyers, children?

Do you know why there is so much crime? Criminals are smart. You lawyers, including the smartest among you, like this jerk, are the stupidest people in our country. You lawyers are stupider than Life Skills Class students learning to eat with a spoon. They have more common sense than you morons.

Posted by: David Behar | Jul 11, 2018 12:46:25 PM

Prof. Berman. You bet. I have been quite set off by this nomination. He investigated the Vince Foster suicide, as a possible murder, after it was ruled a suicide. Kavanaugh is a nut case, in the category of Alex Jones, and the anti-vaxxers.

He helped Ken Starr consume thousands of hours of President time in the Clinton impeachment. These should have been spent on Al Qaeda after the 1993 World Trade Center attack. He was a major factor in the preventable, 100% lawyer caused, 9/11 attack.

He controlled the documents that George W. Bush saw. He is part of the swamp, of the Deep State. GW Bush exploded the size of government. He made several $trillion mistakes, and started the destruction of our economy, to be completed by Harvard Law radicalized Obama.

If you grow up in France, you cannot help but become French. He grew up in Bethesda. I lived there for 3 years. I know those people. They are swamp people. He is one of them, born and bred, 100% swamp.

Are any of these Kavanaugh facts mistaken? I know you are not set off by them. But each is unforgivable. Each should have ended his policy career, and sent him down to the lowest bowels of the federal public defender corps. Now he is being promoted to a top law making position. His decisions will be based on his feelings, as all Justice decisions are. His feelings are that the swamp people know how you should live, and will force you to obey their orders.

Posted by: David Behar | Jul 11, 2018 8:51:45 PM

Kavanaugh targeted by Rosenstein.


Posted by: David Behar | Jul 11, 2018 9:40:32 PM


Your attempt to make Kavanugh seem like a normal, decent chap isn't working.

Posted by: Daniel | Jul 12, 2018 4:22:43 PM

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