One of the reasons why post-Booker circuit jurisprudence tends to be pro-prosecution
Especially since the Blakely and Booker rulings, I have taken to describing the U.S. Supreme Court to be the most liberal appellate court on non-capital sentencing issues in the country. Today I discovered a bit of data that in part explains why the federal circuit courts have been so disinclined to apply dynamically the rights and remedies that the Blakely and Booker decision recognize.
The data concern the backgrounds of modern federal circuit court judges, and they appear toward the end of this new Washington Post article suggesting that the American Constitution Society (ACS) may become a resource for the Obama Administration in ways that the Federalist Society was for the Bush Administration. Here’s what the Post article reports, with a little context:
ACS members … would like nothing more than to duplicate the Federalist Society’s influence. Last month, the organization published a series of policy briefs designed to be a legal road map for the next administration. Among its suggestions are that the Justice Department re-energize civil rights enforcement, try terrorism suspects in civilian courts and appoint federal judges who have a broader range of life experiences.
Cyrus Mehri, a partner in the District law firm Mehri & Skalet who has been supportive of ACS, pointed to a survey his firm conducted showing that no one with a background in public interest law has been appointed to the federal appeals courts since 1981. Also, the survey found, not one federal appeals court judge has substantial experience as an in-house counsel for a labor union. Meanwhile, 45 percent have previously worked as state or federal prosecutors or attorneys general.
I am very suspicious of the assertion that “no one” with a public interest law background has been appointed to the federal circuit courts in over 25 years. Indeed, I can think of more than a few Clinton circuit court appointees who had what I would consider a significant public interest background.
Still, I think it is accurate to assert that former prosecutors and pro-government lawyers are problematically over-represented on the federal circuit courts. And that reality partially (but only partially) explains why federal prosecutors have won most post-Booker battles in lower courts. Like those at the ACS, I am hoping the change that President-Elect Obama has promised will extend to the composition of the federal circuit courts.
Some recent related posts:
- Why federal sentencing reformers must focus on the USSC and lower courts
- How a new administration is likely to impact federal sentencing practice
- Are we on the verge of a new changed era concerning federal sentencing law and policy?
- Judging, politics, sentencing and elections
- Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?
- What does the future hold for the US Sentencing Commission?
- FSR publishes issue on “American Criminal Justice Policy in a ‘Change’ Election”