The appalling failure today of Sonia Sotomayor, Elena Kagan, Stephen Breyer, Anthony Kennedy, John Roberts and Samuel Alito [Updated]
This speaks for itself. I’m sure that Kennedy, Roberts and Alito call this ‘freedom’. I won’t guess at what Sotomayor and Kagan call it. But what Breyer calls it, or should, is conflict of interest. Back when Breyer was lead counsel for the Senate Judiciary Committee, he helped draft the Federal Sentencing Guidelines—a really appalling policy—and has spent the remainder of his career serving as rear-guard protector of it.
Breyer makes me sick. Then again, so does Kagan (nothing new there) and now Sotomayor.
But let’s hear it for Ginsburg, Scalia and Thomas.
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UPDATE: Anyone who’s interested in this subject–and anyone who’s interested in the broader subject of an increasingly important chasm between rightwing libertarianism that is limited solely to taxes/economic-regulation/the-47% schtick and right-wing libertarianism that actually also considers the issue of denial of actual physical freedom to be within the definition of Freedom! Liberty!, presumably even when the denial of physical freedom is by a state or local government rather than by the federal gummint–should read this blog post on the rightwing-libertatian Cato Institute’s web site, about this “cert.” denial.
Of particular interest to me is the comment about Kagan’s decision (evident throughout her tenure on the Court) to be part of the “pragmatic” wing. As the Cato post implies, Kagan has a pretty curious idea of “pragmatism.”
The case at issue, Jones v. United States, was a case prosecuted federal court and subject to the Federal Sentencing Guidelines. But the ground on which cert. was sought was one under the Sixth Amendment, and a ruling finding the judicial practice at issue unconstitutional would have applied to state prosecutions as well as to federal ones.
10/16 at 12:25 p.m.
Bev:
You know better than this, the jury acquittal was a freakin opinion and the judge can ignore it.
Ah! You’re right. Silly me.
Bev:
Unfortunately no one else will know what is meant by my statement.
Freak’n judges simply protecting their turf as the last stop. That is removing the power of final say from We the People. Where’s their strict interpretation now?
Used to be the concern was legislating from the bench. Now it is writing a constitution from the bench.
And, yes another indicator that our education system is failing (in that we do not have people in positions that require the ability to put aside one’s self because we are not producing such) though not quite the indicator I think most are thinking of when the education systems failure is discussed.
“Used to be the concern was legislating from the bench. Now it is writing a constitution from the bench.”
And most people have no idea how extensively this is happening.
Bill, I think that Lyle Denniston’s post, which I linked to, does explain it pretty well … and that anyone who reads it and who didn’t already know that this occurs routinely (which, of course, is virtually everyone other than lawyers) will be shocked by it.
It’s a really safe bet that almost no one knows that this is the way the “jury system” operates in criminal cases.
Bev:
It is always good to point this out. Then to, why have jury trials if the judge will not follow the findings of the jury?
You can’t simultaenously criticize federal sentencing guidelines and then fault judges for refusing to hear arguments about a judge exercising their authority to adjust sentencing as necessary. Further, juries are deciders of fact, not of law, and if a judge feels that the circumstances warrant increased sentencing, that is a matter of law, not of fact. Finally, having a “conflict of interest” has zero relevance to granting cert, and further, you cannot assume anything about the Court’s opinion from a denial; it does not necessarily follow they agree with the lower court’s opinion.
Yikes. What confused jibberish, Darren. The issue is not what the Sentencing Guidelines allow but instead whether what the Sentencing Guidelines do allow, as relevant her, are constitutional. I have no idea whose clichés you’re spouting—wingers routinely spout memorized cliches that are just jibberish—but apparently whoever’s clichés you’re spouting is unaware of the three Supreme Court opinions that disagree with the first two sentences of your comment: Apprendi v. New Jersey (2000); Blakely v. Washington (2004); and U.S. v. Booker (2005). There are roughly a zillion articles about those cases that you could read, but here are links to two that just came up in my quick search:
http://www.jstor.org/discover/10.2307/27977276?uid=3739600&uid=2129&uid=2&uid=70&uid=4&uid=3739256&sid=21104352614791
and
http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1244&context=vlr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dapprendi%2520booker%2520blakely%26source%3Dweb%26cd%3D3%26ved%3D0CC4QFjAC%26url%3Dhttp%253A%252F%252Fdigitalcommons.law.villanova.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1244%2526context%253Dvlr%26ei%3DTCBAVO7-LqS2iwKloYGoDw%26usg%3DAFQjCNGH4NvEgc_rDm902adTwhsLyfiLHA%26sig2%3Do8JXLOnTcWT6Ntuq4QYLuQ%26bvm%3Dbv.77648437%2Cd.eXY#search=%22apprendi%20booker%20blakely%22
As for whether “conflict of interest” has relevance to granting cert, justices do recuse themselves if they have a clear conflict, thus removing them as a vote that would comprise the four needed for cert. But of course in this instance the conflict isn’t one that would require Breyer’s recusal; it’s one that causes him to vote against (including in Apprendi and Blakely, and I think also in Booker, and probably routinely in voting to deny the grant of cert., against the criminal defendant.
But in a comment that is thoroughly silly, the silliest part of all is “and further, you cannot assume anything about the Court’s opinion from a denial; it does not necessarily follow they agree with the lower court’s opinion.” It is, of course, the failure—in case after case after case, year after year after year—to grant cert. and decide the issue–that is what the criticism (Scalia’s, Thomas’s, and Ginsburg’s; mine; the Cato Institute post’s author; and many, many other people’s) IS. It is exactly that the Court repeatedly denies cert. in these cases—allowing longer sentences in one after another after another based upon a judicial practice and state and federal statutes that violate the Sixth Amendment.
What, no Crawford?
Nah, Crawford v. Washington dealt with another part of the Sixth Amendment—the Confrontation Clause (the right to cross-examine prosecution witnesses). Jeffrey Fisher was the victorious counsel in both sets of Sixth Amendment Supreme Court victories, though. (Well, not in Apprendi, but in Blakely and Booker.)