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August 29, 2018

A thorough review of Judge Kavanaugh's criminal case work on the DC CIrcuit

Over at SCOTUSblog, Rory Little has this lengthy post providing a detailed review of Judge Brett Kavanuagh's work in criminal cases over a dozen years on the DC Circuit.  The post should be read in full by all criminal justice fans, and here are some excerpts that highlight the post's themes, along with a few parts likely to be of particular interest to sentencing fans: 

When one also considers that federal appellate judges must follow Supreme Court precedent rather than write or consider it anew, an analysis of Kavanaugh’s relatively sparse work in criminal cases over the past 12 years yields few definitive data points....

In criminal cases, Kavanaugh’s body of work is relatively straightforward and unexciting. He does not often disagree with, and never insults, his colleagues. His opinions are careful and seek to follow precedent; they take few if any legal or stylistic risks.  Meanwhile, Kavanaugh sometimes rules for defendants, occasionally in surprising ways....

Kavanaugh has a particular interest in federal sentencing and the Sentencing Guidelines: It has been said that one’s first love may be the strongest. The first published writing on criminal law by Kavanaugh that I found was a January 2007 concurrence in U.S. v. Henry, in which Kavanaugh joined Garland and Judge Karen Henderson in the reversal of a defendant’s sentence in light of the Supreme Court’s United States v. Booker decision. (Booker was an unusual case in which a five-justice majority ruled that the mandatory federal Sentencing Guidelines structure, just like that of some states, violated the Constitution’s jury trial guarantee – but then a different five-to-four majority ruled that as a remedy, the federal guidelines statute should be construed as discretionary rather than mandatory.) Kavanaugh’s opinion is quite scholarly, noting the “tensions” in Booker’s constitutional analysis.

Kavanaugh went on to manifest concerns about the nuances of federal criminal sentencing in at least eight later writings. Of particular note, he expressed misgivings in Henry, and then again in 2008 (United States v. Settles), and then a third time recently in an en banc concurrence, “about the use of acquitted conduct at sentencing,” which he wrote “seems a dubious infringement of the rights to due process and to a jury trial.”...

Many of Kavanaugh’s rulings can be labeled “pro-defense”: Although some court-observers fear that Kavanaugh’s confirmation could drive the Supreme Court further to “the right,” I found at least eight D.C. Circuit decisions — in addition to the Nwoye “battered women syndrome” case mentioned above — in which Kavanaugh wrote to join a “pro-defendant” ruling....

Although Kavanaugh cannot overall be described as a criminal-law “liberal,” one might call him a “Kennedy-esque” moderate. In sum, Kavanaugh’s writings in traditional criminal-law cases seem unlikely to draw critical fire from any political direction.

Some prior related posts:

August 29, 2018 at 09:56 PM | Permalink

Comments

I would expect that Kavanaugh will, like Scale, protect what is actually there. and will not expand rights. I predict that Missori v. Frye will ultimately be overruled.

Posted by: federalist | Aug 30, 2018 7:32:37 PM

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