A quick sentencing perspective on a possible new Justice

With fitting fanfare from other bloggers here and here, the fine folks at SCOTUSblog now have gone public with The Supreme Court Nomination Blog.  The SCOTUSNom blog aspires “to provide comprehensive, objective coverage of the Supreme Court nomination process.”  It is already a very impressive effort (and the real action hasn’t even started).  If (when?) there is a SCOTUS vacancy this summer, the legal blogsphere will likely reach a whole new buzz level, and I expect the SCOTUSNom blog will be at the center of all the action.

Whenever there is a SCOTUS vacancy, I will provide a sentencing perspective on all the new Justice talk.  Indeed, I can start providing that perspective now.  Recall that 5-4 votes produced the Almendarez-Torres “prior conviction exception” and the Harris “mandatory minimum” exception to the Apprendi–Blakely rule.  Both Chief Justice Rehnquist and Justice O’Connor, the two Justices considered most likely to retire, are key votes supporting these limits on the reach of the Apprendi–Blakely rule.  If (when?) President Bush were to nominate replacement Justices in the “Scalia-Thomas” mold, the future of Almendarez-Torres and Harris would seem to be even shakier.

Of course, Justices Scalia and Thomas did split their votes in both Almendarez-Torres and Harris, although Justice Thomas has now essentially recanted his vote in Almendarez-Torres and Justice Scalia has never explained his vote in Harris.  So, even the votes of the current Justices on the big sentencing issues are subject to uncertainty and debate; I am sure the same will be true for any and every potential nominee.  Should be a fun summer for Court fans.