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Friday, July 11, 2003
Senator Patrick Leahy is the Shiznit

I thought I'd reprint the following from the Congressional Record, since its just so great and nobody really knows how to find this stuff on Westlaw.

(From the Congressional Record of July 09, 2003, Senate section - Pages: S9115-6)


Mr. LEAHY. Mr President, earlier this year, the House Republicans saddled the bipartisan, non-controversial AMBER Alert bill with numerous unrelated and ill-conceived provisions, collectively known as the “Feeney amendment,” that effectively overturned the basic structure of the carefully crafted sentencing guideline system. At the time, we were warned by
distinguished jurists that these provisions would irrevocably harm our sentencing system and compromise justice. For example, the Nation's Chief Justice warned that the Feeney amendment, if enacted, “would do serious harm to the basic structure of the sentencing guideline system and would seriously impair the ability of courts to impose just and responsible sentences.'' Despite such objections, and without any serious process in the House or Senate, these provisions were pushed through conference with minor changes and enacted.

We are now beginning to witness the far-reaching impact of this folly. Not only have we compromised the sentencing system, but we have alienated and minimized the effectiveness of our Federal judges, prompting at least one to announce early retirement.

As enacted, the Feeney amendment, substantially reversed provisions allowing Federal judges to depart from sentencing guidelines when justice requires. It also created a “black list” of judges who impose sentences that the Justice Department does not like, and limited the number of Federal judges who can serve on the Sentencing Commission, thus reducing the influence of practical judicial experience on sentencing decisions.

In response, in a June 24 op-ed in the New York Times, Republican-appointed district judge and former Federal prosecutor, John S. Martin, Jr., decried these provisions as “an assault on judicial independence,” “at odds with the sentencing philosophy that has been a hallmark of the American system of justice,” and tragically, the impetus for his decision to retire from the bench,
rather than exercise his option to continue in a lifetime position with a reduced workload. “When I took my oath of office 13 years ago I never thought I would leave the Federal bench...I no longer want to be part of our unjust criminal justice system.”

It is shameful that we have allowed such half-baked, poorly-crafted legislation to lead to the loss of a judge that has dedicated his career to fighting crime and preserving justice. When he was appointed by the first President Bush in 1990, Judge Martin brought with him to the bench years of knowledge and experience as a Federal prosecutor, including 3 years as a U.S. Attorney for the Southern District of New York. As a former Federal prosecutor, he is no slouch on crime. He knows very well the importance of vigorously pursuing and punishing wrong-doers. But his experience has also taught him that these goals cannot trounce the equally-critical pursuit of justice and fairness.

Unless we reverse the damaging provisions in the Feeney amendment, we will continue to compromise justice, alienate Federal judges, and threaten the stability and integrity of our judicial system. That is why I joined Senators Kennedy, Feingold, and Lautenberg in introducing the Judicial Use of Discretion to Guarantee Equity in Sentencing Act of 2003, or the JUDGES
Act. This bill would correct the Feeney amendment's far-reaching provisions by restoring judicial discretion and allowing judges to impose just and responsible sentences. In addition, the JUDGES Act would reverse the provisions limiting the number of Federal judges who can serve on the Sentencing Commission. Finally, the JUDGES Act would follow through on the advice of
Chief Justice Rehnquist to engage in a “thorough and dispassionate inquiry” on the Federal sentencing structure by directing the Sentencing Commission to conduct a comprehensive study on sentencing departures and report to Congress with 180 days.

In his New York Times op-ed, Judge Martin raised another important point: Limiting judicial discretion and involvement in sentencing practices also reduces the personal satisfaction that judges derive from knowing that they are integrally involved in promoting a more just society, and in doing so removes a powerful incentive that prompts potential judges to accept a judicial
appointment, despite inadequate pay. “When I became a Federal judge, I accepted the fact that I would be paid much less than I could earn in private practice...I believed I would be compensated by the satisfaction of serving the public good--the administration of justice. In recent years, however, this sense has been replaced by the distress I feel at being part of a
sentencing system that is unnecessarily cruel and rigid.”

We all know that judicial pay is a challenging issue. Indeed, this is why I introduced a bill, S. 787, to restore the many cost of living adjustments that Congress has failed to provide the judiciary, and have joined Chairman Hatch and many other members of the Judiciary Committee in sponsoring S. 1023 to increase the annual salaries of Federal judges and justices. I encourage my colleagues to support these efforts. But I ask them not to make the challenge of judicial pay worse by taking away the intangible compensation that is the satisfaction from serving the public good. Unfortunately, the Feeney amendment has done just that.

I again urge my colleagues to support the JUDGES Act, and I ask unanimous consent that Judge Martin's June 24 op-ed be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD


This has to be produced in every country in the world - like NOW:

It puts the lotion on its skin.

Thursday, July 10, 2003
Amazed and Intrigued

I am absolutely fascinated by Barnett's essay today in the National Review Online. Ordinarily, for obvious reasons, I skip over the NRO articles linked by our blawgfather, Howard Bashman. Today, however, the title of the essay caught my eye, and boy am I glad I read it. Mr. Barnett, a member of the Cato Institute, is a genius. I could not have said it better myself. (Apparently, Mr. Barnett has "been saying it" for some time now. Check out his books at the bottom of the page.) Ever since Lawrence came down I've been struggling with the lack of reference to "privacy" and "fundamental right" in the opinion. It all makes sense to me now in a very exciting way. In fact, I can't wait for an astute lawyer to pick up on the arguments mentioned in this essay to expand the right to "liberty" expressed in Lawrence as highlighted by Mr. Barnett. It has been obvious that Lawrence is a watershed decision, but if it can be used to expand libertarian ideas in the manner explained by Mr. Barnett, the decision will be truly revolutionary. Exciting times lie ahead.

P.S. Prominent blogger Clayton Cramer strongly disagrees with Mr. Barnett because apparently the right to shoot people, in his mind, does not affect anyone other than the shooter. Not only is this argument flawed for the obvious reason that gun control laws protect those who are shot (and deprived of life and liberty), while sodomy laws infringe upon the liberty of consenting adults to act in a way that affects no one else, but also because it is the Second Amendment, not the Fourteenth that governs gun control. "Liberty" has a precise definition in the libertarian context espoused by Barnett, while reasonable minds can and do differ over the meaning and scope of the Second Amendment, even among libertarians. Perhaps Clayton should consider removing his "Libertarian" self-label from his blog. He seems to have the following maxim reversed: "All Libertarians believe the government should not legislate private consensual behavior, but not all Libertarians believe in the wholesale repeal of all gun control laws." In fact, as a libertarian, I believe one of the few things the government should be doing is keeping assault-rifle-toting-ex-felon-psychpatients from gunning me down on the street.