Monday, August 09, 2004

Uh, recuse me?

Not too long ago, Ken Lammers over at Crim Law posed the following question: Chief Judge Wilkins was the first head of the US Sentencing Commission (see page 7 of this pdf) and thus forever linked to it. Does anyone know if he has recused himself from the 02 August 2004 4th Circuit en banc argument concerning the application of Blakely?

Of course, the answer was “no.” And I have good reason to believe that he never even considered it.

Ken, Doug Berman and I discussed the recusal issue over email and came across United States v. Glick, 946 F.2d 335 (4th Cir., 1991). One of the issues in Glick was whether a judge who sat on the Sentencing Commission should recuse themselves from cases where there was an appeal relating to a guidelines issue. In Glick, the court cites United States v. Wright, 873 F.2d 437, 445 (1st Cir. 1989) (Breyer, J., writing separately), where then Judge Breyer, wrote the following after summarizing some practical reasons for why recusal was not warranted in Wright:

In light of these considerations, I shall not recuse myself in this case, where no special circumstances are present, nor shall I automatically recuse myself in typical Guidelines cases, unless they involve a serious legal challenge to the Guidelines themselves. I shall, however, entertain any motion for recusal that is made. Parties should inform the clerk of any such motion; and the clerk will transmit the motion to me without indication as to which party has made it. (emphasis added by the Blakely Blog)


Admittedly, when Judge Breyer wrote in Glick, he was an active member of the Sentencing Commission. And since becoming a Justice, he has presided over sentencing cases, even writing the opinion in Buford v. United States, 532 U.S. 59 (2001). And perhaps those distinctions make this a moot point, but that won’t stop me from raising a few questions relating to recusals. First, should Justice Breyer, as one of the architects of the guidelines take a cue fro Wright and recuse himself from Booker and Fanfan? Second, should Justice O’Connor recuse herself for essentially telling us how she would vote in Booker/Fanfan in her Blakely dissent?

The first question was posed by Ken Lammers at Crim Law and as I said, the distinctions between Judge Breyer in Wright and Justice Breyer in Booker/Fanfan probably make this a moot point. After all, no one told Hugo Black he couldn’t preside over a separation of powers case because he was once a senator from Alabama. In fact, Justice Black relied on his own statements as a senator when confronted with interpreting the meaning of Section Two of the Twenty-First Amendment which repealed prohibition. See Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 337 (1964)(Black, J., dissenting).

The second question may deserve a little more discussion, however. I don’t think I've read any discussion on the web of the second question, so I ask: Should Justice O’Connor recuse herself, just as Justice Scalia did in the Newdow case?

To illustrate this point, I have excepted some of Justice O’Connor’s dissent which could be cited to support a request that O’Connor recuse herself. But before I do that, I will point out that in several places in her dissent Justice O’Connor uses careful language which suggests the guidelines are in trouble, not that she thinks their fate is sealed. But I think you'd have to admit, despite some of the careful language, that her Blakely dissent sure does appear to tip her hand. Here are some excepts from Part IV of Justice O’Connor’s dissent:

It is no answer to say that today’s opinion impacts only Washington’s scheme and not others, such as, for example, the Federal Sentencing Guidelines. See ante, at 9, n. 9 (“The Federal Guidelines are not before us, and we express no opinion on them”); cf. Apprendi, supra, at 496—497 (claiming not to overrule Walton, supra, soon thereafter overruled in Ring); Apprendi, supra, at 497, n. 21 (reserving question of Federal Sentencing Guidelines). The fact that the Federal Sentencing Guidelines are promulgated by an administrative agency nominally located in the Judicial Branch is irrelevant to the majority’s reasoning.



The structure of the Federal Guidelines likewise does not, as the Government half-heartedly suggests, provide any grounds for distinction. Brief for United States as Amicus Curiae 27—29. Washington’s scheme is almost identical to the upward departure regime established by 18 U.S.C. § 3553(b) and implemented in USSG §5K2.0. If anything, the structural differences that do exist make the Federal Guidelines more vulnerable to attack.



If the Washington scheme does not comport with the Constitution, it is hard to imagine a guidelines scheme that would.


This raises another interesting possibility. Assuming that Justice O’Connor does not recuse herself, what is her vote likely to be? Will she vote in a manner consistent with what she implies in her dissent is the natural result of Blakely, striking down the federal guidelines? If she doesn’t vote to invalidate the guidelines in light of her Blakely dissent, well…


Comments:
Hi,

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Melissa K. W.
To see my family view this page. My Family


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