Thinking about new federal reform dynamics

With no Booker and Fanfan today, I have at least another 24 hours to speculate about the post-Booker federal sentencing world.  And, though I have previously commented on how fast Congress might react to Booker and Fanfan, today I am wondering how the move of US Sentencing Commissioner Michael O’Neill to become chief counsel of the Senate Judiciary Committee (details here) might impact the sentencing work of both bodies.

At November’s USSC hearings (summaries here and here), the questions coming from the Commissioners suggested a possible divide within the USSC over the so-called Bowman fix (aka “topless guidelines”) if SCOTUS applies Blakely to the federal sentencing guidelines.  As I recall, Commissioners O’Neill and Horowitz seemed to be trying figure out how topless guidelines might work, while Commissioner Sessions seemed concerned about re-building the federal system on the shaky precedent of Harris.  I wonder if O’Neill might bring to his new job an affinity for topless guidelines (recall, as detailed here, that topless guidelines seem to be favored by the Justice Department). 

Also, it is worth noting that, until O’Neill is replaced on the USSC, there is the potential for the Commission to be evenly split (3-3) on any key votes.  For that reason and others, I am hopeful (though not particularly optimistic) that the President can name, and the Senate can confirm, a new Commissioner in short order.

Of course, in Congress and the USSC, nothing can or will move forward until we see Booker and Fanfan. And my sources report that, if the decision does not come tomorrow, then the following Tuesday or Wednesday (Jan. 18 or 19) seems to be the next earliest possible decision day.  But if the decision does come tomorrow, I think it is possible there will be hearings in Congress and/or in the USSC before the end of January.