Crime & Consequences

Category: Judicial Selection

An Ethically Challenged Sentencing Commission Nominee

by · May 11, 2022 3:04 pm

The President today nominated a full slate of attorneys and judges for the US Sentencing Commission.  The majority are Democrats, as is the President’s prerogative.  I don’t know any of them, but I am familiar with the work on one of them, former US District Judge John Gleeson.  Gleeson will be familiar to most readers as the amicus appointed by the district court in the infamous Michael Flynn prosecution, to argue in support of the court’s continuing with the prosecution notwithstanding the Justice Department’s wish to end the case on account of questionable (at best) prosecutorial behavior.

But there is another aspect of Gleeson’s behavior, undertaken while he was on the bench, that calls into question his ethical fitness.  I wrote about this before, and regrettably, it is newly relevant today.

Continue reading . . .

Keeping USCA9 Weird

by · Mar 30, 2022 11:35 am

In some cities with oddball reputations, some residents who are proud of that reputation sport bumper stickers saying “Keep [City] Weird.”

Ninth Circuit Judge Sidney Thomas, the Chief Judge until fairly recently, yesterday announced he is taking senior status effective upon the appointment of his successor. See the court’s press release.

Not mentioned in the press release is that the timing will likely enable President Biden to appoint a like-minded successor while the Democratic Party still holds the narrowest possible majority in the Senate, a majority it is likely to lose in the November election. That is, he can appoint someone favored by the more criminal-friendly wing of his party without needing the consent of a single Republican. In other words, he can keep the Ninth weird. Continue reading . . .

What’s a Woman?

by · Mar 25, 2022 12:13 am

As has been widely reported, Supreme Court nominee Judge Ketanji Brown Jackson was asked at her confirmation hearing if she “could provide a definition for the word ’woman.’”

“No, I can’t,” she eventually said. “Not in this context. I’m not a biologist.”

What to make of this?

Continue reading . . .

The Diversity Scam

by · Feb 15, 2022 1:31 pm

It’s not news at this point that President Biden preemptively determined that he would exclude close to 95% of the population in looking for his first Supreme Court nominee, and restrict the search solely to black women.  Excluding almost everyone in advance is a remarkably stupid way to go about making critical SCOTUS appointments, as three quarters of the electorate took little to time figure out.  The excuse being given for the blanket exclusion of black men, white men, white women, Hispanics, Asian-Americans and anyone else you can think of is  —  ready now?  —  diversity.

That this is preposterous on its face is not the point I want to make, since that’s too obvious to be posting about.  Instead, the point worth noting is that, according to one quite prominent leader in Washington, DC, it’s not really about diversity at all.

Continue reading . . .

Breyer to Retire, Part lll

by · Jan 30, 2022 9:21 pm

President Biden has made it clear that he will restrict his pool of Supreme Court candidates to black women only, thus excluding almost 95% of the population from the get-go.  How this yields the most qualified possible nominee has yet to be explained; perhaps commenters can give me a clue.  I’m assuming here, of course, that Supreme Court qualifications are things like fidelity to the Constitution, legal scholarship, broad experience, fair mindedness and self discipline.  What a candidate looks like is decidedly not a qualification for the Court, or probably much of anything beyond making your way in Hollywood.

But enough of what I think.  What do the American people think?  ABC News polled the question.

Continue reading . . .

Breyer to Retire, Part ll

by · Jan 26, 2022 11:27 am

Mike has noted the news being reported this morning that Justice Stephen Breyer will retire at the end of the Court’s current Term.  It’s true, as Mike observes, that this will give our aging President the chance to solidify the liberal wing on the Court with someone 30 or 40 years younger than Breyer.  But there are two other features about today’s news worth noting.

Continue reading . . .

FedSoc Executive Branch Review

by · May 11, 2021 2:13 pm

The Federalist Society’s Annual Executive Branch Review is next week, Monday through Thursday, online. It’s free unless you need continuing education credits for the Wednesday session. There is a fee for the required CE materials.

There is no panel specifically on criminal law. We decided to separate the forthcoming “progressive prosecutor” panel to a stand-alone event. Stay tuned for details on that. However, there are a number of good programs on other topics of federalism and separation of powers on tap.

Thursday afternoon, there is is a panel on judicial nominations and confirmations, a matter of great interest to those who practice criminal law. The panel description follows the break: Continue reading . . .

Biden’s Imprudent Pledge to Nominate a Black Woman to SCOTUS

by · Mar 28, 2021 8:28 pm

President Biden has pledged to nominate a black woman to the Supreme Court if he gets an opening.  Using race and sex to select SCOTUS Justices strikes me as somewhere between imprudent and perverse.  What happened to the idea that the selection should be based on experience, knowledge of the law, temperament, discipline, and fidelity to the text of the Constitution?  What do your skin color and your body parts have to do with it?

The answer should be, nothing.  But because Biden is now immersed in identity politics, which is bad enough, he how wants to plunge us into identity law, which is even worse.  This is not to mention that his criteria would limit the nominee pool to six percent of the population, pre-emptively dismissing ninety-four percent.  Does that seem smart?

Fifth Circuit Judge James C. Ho has some thoughts.

Continue reading . . .

Should Felons Decide What Sentences Felons Deserve?

by · Feb 25, 2021 2:06 pm

Sentencing Law and Policy has this thought-provoking post urging President Biden to make filling Sentencing Commission slots a priority, and recommending  —  you’ll never guess  —  “diversity.”  But it’s diversity of a notable kind.  The post’s final paragraph tells the story in only slightly scrubbed language:

In his pioneering 1972 book, Criminal Sentences: Law Without Order, Judge Marvin Frankel first advocated for a “Commission on Sentencing” to include “lawyers, judges, penologists, and criminologists, … sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates.”  As Judge Frankel explained, having justice-involved persons on a sentencing commission “merely recognizes what took too long to become obvious—that the recipients of penal ‘treatment’ must have relevant things to say about it.”  Judge Frankel’s insights remain ever so timely a half-century later, and the federal system can now follow a recent sound state example: Brandon Flood was appointed Secretary of the Pennsylvania Board of Pardons in 2019, not despite but largely because of his lived experience as an inmate and his numerous encounters with the criminal justice system.  President Biden’s could and should consider going even further by including multiple persons with diverse, direct experiences with U.S. justice systems in his nominations to the U.S. Sentencing Commission.

What to make of the suggestion that the inmates should decide how long other inmates remain in the asylum?

Continue reading . . .