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April 11, 2022

Considering sentencing echoes of SCOTUS confirmation hearings' sentencing attacks

This lengthy new CNN article, headlined "Ambitious trial judges could be wary after GOP attacks on Judge Jackson's sentencing record," provides an effective review of how last month's SCOTUS spectacle could impact the work of federal sentencing judges.  I recommend the full piece, and here are excerpts (with some commentary added in spots):

The Senate Republicans who led the attacks on Judge Ketanji Brown Jackson's sentencing record say they hoped to send a message to other trial judges who might seek appointments to higher courts.

While some veteran judges see it as a tactic of intimidation, it hits on a longstanding tension between the lifetime tenure granted to judges to in theory shield them from politics and lawmakers' frustration that they're using that discretion to supposedly stretch beyond the instructions they've received from Congress. J

One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations, who are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes," Sen. Ted Cruz, a Texas Republican, told CNN.

Of course, as I highlighted in this prior post, Judge Jackson was "following the law" in all of her sentencing decisions; and the cases that were the focal point for attacks by GOP Senators did not generally involve "violent criminals," but on computer criminals who downloaded child pornography.  Sigh.  Now, more from the CNN article:

"It is in part meant to intimidate judges," said Ret. Judge Shira Scheindlin, who joined several other retired judges in a letter last month defending Jackson's approach to the child pornography cases that had been singled out by GOP lawmakers. "They are kind of on notice that, if that's their ambition, they better think hard about their sentencing practices," Scheindlin, a Bill Clinton appointee, told CNN. "That's a bad thing."...

"I think it's terrible for public perception for the senators to be suggesting that there are judges around the country who favor child pornography," said Ret. Judge John Martin, who served as a US Attorney under Presidents Jimmy Carter and Ronald Reagan before his appointment by President George H.W. Bush to Manhattan's federal court....

Whether judges will change their approach out of fear they too may someday face the hostility Jackson was subjected to remains to be seen. "People in the legal profession saw it for what it was, and it wasn't a real argument based in fact," said Lisa Cylar Barrett, the director of policy at the NAACP Legal Defense & Educational Fund.

Judges take it seriously, Ret. Clinton-appointed Judge Faith Hochberg told CNN, that their job requires them "to set politics aside and apply the facts and the law to every single case that comes before them, without any overlay of what may be made of the decision politically by someone else who wasn't privy to the facts and the law that the judge was presented."

Still other former judges acknowledged it could have a conscious or subconscious effect. "I don't think judges are going to be too intimidated, but for those few who have the ambition to go to a higher court, they may think twice about leniency," Scheindlin said. "That's unfortunate. They should only be thinking about the defendant in front of them."

April 11, 2022 at 09:00 AM | Permalink


Is this anything new? Presidents (and their staffs) have always looked at the prior decisions of judges they consider for elevation to higher courts.

Posted by: Marc Shepherd | Apr 11, 2022 10:40:36 AM

Is this anything new? Presidents (and their staffs) have always looked at the prior decisions of judges they consider for elevation to higher courts.

Posted by: Marc Shepherd | Apr 11, 2022 10:40:36 AM

Marc Shepherd --

Correct. Not only is it now new; it's perfectly proper. If scrutiny of one's career in the law is not legitimate grist for the confirmation mill, one must wonder what is.

Posted by: Bill Otis | Apr 11, 2022 10:36:54 PM

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