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March 21, 2022

Recalling the text of the applicable law which helps account for Judge Jackson's sentencing rulings

I was able to listen to some of the opening statements of Senate Judiciary Committee members during today's installment of the hearings concerning the nomination of Judge Ketanji Brown Jackson to be an Associate Justice of the Supreme Court.  Unsurprisingly, various GOP Senators extolled the importance of judges following the law and being committed to the rule of law:

Senator Grassley: "We depend on judges to interpret the laws as we write them."

Senator Cornyn: "Part of that judgment requires a judge to go where the law commands."

Senator Cruz: "Will you follow the law?" 

Senator Cotton: "I am looking for a Justice who will make decisions based on the law."

Senator Kennedy: "Sometimes Justices have to uphold the rule of law when it is not popular."

These various statement led me to reflect on my recent post about Judge Jackson's sentencings of persons involved with child pornography, and I realized that Judge Jackson’s critics have not asserted that Judge Jackson failed to follow the sentencing laws set out by Congress.  Through 18 USC § 3553(a), Congress has instructed judges in to impose a sentence "sufficient, but not greater than necessary, to comply with the purposes" of sentencing, and also demands that district judges consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Since the Booker ruling made the guidelines advisory, guideline ranges are still to be considered, but only as one of multiple statutory factors in service to a "sentencing judge’s overarching duty under §3553(a) to 'impose a sentence sufficient, but not greater than necessary' to comply with the sentencing purposes set forth in §3553(a)(2)."  Pepper v. US, 562 U.S. 476, 491 (2011).

Senator Hawley reiterated during his opening statement what seems to be his chief concern with Judge Jackson's sentencing efforts: “What concerns me, and I've been very candid about this, is that in every case, in each of these seven, Judge Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors recommended and so I think there’s a lot to talk about there.”  Critically, applicable federal sentencing law does not call upon a judge to follow "what the federal guidelines recommended" or "what prosecutors recommended."  Indeed, a sentencing judge who adhered only to guideline or prosecutorial recommendations would arguably violate a judge's obligation of independence and the express text of the law Congress enacted to guide judges at sentencing.

Of course, "what the federal guidelines recommended" is one of many 3553(a) factors to be considered by sentencing judges and "what prosecutors recommended," though not part of the text of federal sentencing law, can still provide judges with insights concerning the proper application of all the 3553(a) factors.  But, to repeat, those recommendations are not the applicable law: Judge Jackson when on the district court was duty bound, to use Senator Cotton's words, to "make decisions based on the law" which means she had "to 'impose a sentence sufficient, but not greater than necessary' to comply with the sentencing purposes set forth in §3553(a)(2)."  Pepper, 562 U.S. at 491.  To parrot Senators Cornyn's and Kennedy's words, Judge Jackson was required at sentencing "to go where the law commands" and to "uphold the rule of law [even] when it is not popular."  Based on insights from her time on the US Sentencing Commission and her considerable judicial service, Judge Jackson surely understood the importance of all the 3553(a) factors in reaching a sentencing outcome, and nobody has suggested otherwise.

Some prior related coverage:

March 21, 2022 at 08:22 PM | Permalink


The text of governing law shows that her sentencing was legal, yes. But one has the right to aim higher than merely within the law for a SCOTUS Justice. When all the remarked-upon sentencings are in the same direction, namely in favor of the criminal, that raises a question of bias. Senators are well advised to ask about that.

But probably best to cut to the chase: This nomination in some ways reminds me of the Kavanaugh nomination when Kennedy retired. Kavanaugh was going to be on the list for almost any R President just as Jackson was going to be on the list for almost any D President. Kavanaugh is slightly to the right of the Justice he replaced and Jackson is going to be slightly to the left of the one she's replacing. Biden was a sure bet to nominate someone in the mold of Sotomayor and he did. Not big news there.

The difference between Kavanaugh and Jackson is that Trump did not ab initio exclude anyone, while Biden excluded roughly 95% of the possible nominees. If Trump had said, "In looking for a replacement for the retiring Justice, I am going to exclude right now all black men, all white men, all Hispancis, all Asian Americans, and everyone with a heritage from the Subcontinent," would the press have gone all mushy about how Trump would be making an "historic appointment"? Somehow I doubt it. The greater likelihood is the the NYT headline would read, "Trump to exclude most potential candidates solely on account or race and sex; legal experts are astonished."

On the other hand, it's not fair to judge Jackson simply because she was nominated as the result of a race-huckstering political payoff. She should be judged on her own merits. I would have preferred another Thomas or Alito, but elections have consequences so we'e going to get another Sotomayor. That's life. I'm hoping that the future Justice Jackson will be able to refrain from telling us about how the woe-begotten defendant is really a victim rather than a victimizer. I wouldn't bet the rent, but perhaps I'll be pleasantly surprised.

Posted by: Bill Otis | Mar 21, 2022 10:08:48 PM

When Reagan promised to nominate a woman to the Supreme Court, he excluded 50% of humanity ab initio.

When George H. W. Bush nominated Clarence Thomas, he made no such promise out loud, but when the only Black justice in history retired, you surely do not think it a total coincidence that at that exact moment, Bush managed to nominate the second, unless he were looking to do just that.

Posted by: Marc Shepherd | Mar 22, 2022 6:13:44 AM

Marc Shepherd --

First, excluding 50% is only about half as bad as excluding almost everyone. And while O'Connor was pretty much up to the job, no one mistook her then or now for Benjamin Cardozo or Felix Frankfurter.

Second, if Judge Jackson turns out to have half the discipline, courage, rigor and fidelity to the Constitution that Clarence Thomas has, I will eat every word I've said against her (which won't be much of a meal since I have concentrated my fire on the method of selection, not on her).

Third, just saying, "But Johnny does it too!" has never struck me as a forceful criticism. The fact of the matter is that selecting judges by racial and gender identity rather than legal acumen, modesty, fair mindedness, etc. is a bad idea no matter who does it.

Posted by: Bill Otis | Mar 22, 2022 8:03:00 AM

I absolutely agree there is a principled argument for choosing the most qualified person, full stop. And yet, both Reagan and Biden found it electorally useful to declare up front that a large percentage of the candidate pool was excluded a priori because they did not fit the desired demographic.

(To correct my own post, Reagan preemptively disqualified a lot more than 50% of the candidate pool. Although women are ~50% of humanity, they were not, especially in 1980, anywhere near 50% of the plausible conservative Republican Supreme Court picks.)

G. H. W. Bush did not make any such announcement, since Thurgood Marshall's impending retirement was not discussed in the 1988 campaign to any significant extent. Still, whatever you might think of how Clarence Thomas turned out, no one is under any illusion as to why he was chosen at the time. No white man of either party with his resume would have sniffed the nomination.

Posted by: Marc Shepherd | Mar 22, 2022 9:48:37 AM

Mr. Otis' praise of Thomas' fidelity to the Constitution made me gasp. He has long lived up to his reputation as the cruelest Judge, see his (and Scalia's) dissent in Hudson v. McMillian, 503 U.S. 1 (1992) (nothing cruel about a prisoner being beaten up while guards watch with glee) .Thomas never recovered from being publicly accused of sexual perversion and harassment by Anita Hill, a distinguished black former employee. Has he sought vengeace against black folks ever since? Consider that he has opposed most policies that seek to combat discrimination or help minorities. As stated in an article in the Atlantic, "he disfavors integration and even seems to resist desegregation. A former black activist and onetime follower of Malcolm X, he champions a criminal-justice system suffused with racism, and has rejected claims of cruel and unusual punishment made by prisoners. Thomas’s most uncomfortable contradiction, though, rests on an abstraction. He is the Supreme Court’s foremost originalist—that is, he purports to interpret the Constitution as the Founders understood it in 1789. Yet how can a black man make such a commitment when the Founders wrote slavery into the Constitution’s very text?" The list of Thomas' reactionary opinions that would take us back to the 1930's if not earlier are too numerous to list.

Posted by: anon12 | Mar 22, 2022 9:54:57 AM

@anon12: While I disagree with a lot of Justice Thomas's jurisprudence, I don't feel it is payback for how he was treated in the Anita Hill hearings. He was nominated because (among other reasons) he was already very reliably conservative.

Nor do I think his jurisprudence is vested in cruelty. He has been a consistent vote in the Apprendi line of cases that were generally seen as pro-defendant. He is just very literal about the law and the Constitution, and he thinks it doesn't evolve. He also does not believe in adhering to precedent *at all*. If a precedent is wrong, he believes it should be overruled, no matter how many people have relied on it.

The comment about slavery is nonsense, because the right to keep slaves was amended out of the Constitution. His fidelity to the text does not mean adherence to provisions that have since been amended.

Posted by: Marc Shepherd | Mar 22, 2022 12:12:18 PM

anon12 --

You say of Justice Thomas, "As stated in an article in the Atlantic, 'he disfavors integration and even seems to resist desegregation.'"

Congratulations, Mr. anon12, for the most idiotic comment today on the Internet. The black man who "disfavors integration" is married to a white woman.

Posted by: Bill Otis | Mar 22, 2022 2:35:58 PM

Judge KBJ can’t even say what a woman is. The “I am not a biologist” response is just plain dumb. What a joke.

Posted by: Federalist | Mar 23, 2022 10:15:30 AM

I agree with Federalist but would go farther. Judge Jackson of course knows full well what a woman is (namely, a person with xx genes; males have xy). She denies knowing because she's aware that the next question is going to be about biological males competing (and predictably dominating) women's sports. Like so many extreme liberals, she has no problem with this domination, because having no problem is what Woke Wisdom demands. She can't cross Woke Wisdom because it's ingrained in her base political support. Ergo, it's actually better for her to make the preposterous claim that she doesn't know what a woman is.

Only in a very, very unserious country does this count as a qualification for the Supreme Court.

P.S. The person who nominated her has absolutely no problem knowing who a woman is, as he repeatedly promised to nominate one (as opposed to a man) for that seat.

Posted by: Bill Otis | Mar 23, 2022 5:08:28 PM

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