[addendum] I sent this question out to Blakely Blog and Sentencing Law & Policy and was referred to United States v. Glick, 946 F.2d 335 (4th Cir., 1991) and Buford v. United States, 121 S.Ct. 1276, 532 U.S. 59, 532 U.S. 59, 149 L.Ed.2d 197 (2001). In Glick Chief Judge Wilkins affirms his ability to pass judgement on the proper application of the guidelines even though he was then sitting on the Sentencing Commission. Buford is an example of Justice Breyer passing judgement on the proper application of the guidelines despite being an original member of the Commission.
However, I find this language in Glick intriguing:
In an earlier case involving the appeal of a sentence, Chief Judge Stephen G. Breyer, United States Court of Appeals for the First Circuit, and former member of the Sentencing Commission, sua sponte raised the question whether he should disqualify himself from hearing that appeal. United States v. Wright,873 F.2d 437, 445 (1st Cir. 1989) (Breyer, J., writing separately). Judge Breyer, who was extensively involved in the drafting and promulgation of the guidelines and policy statements that applied to the sentence in question, concluded that it would be proper for him to continue to participate in appeals in " typical Guidelines cases, unless they involve a serious legal challenge to the Guidelines themselves." Id. at 447. I agree.I really cannot think of a more serious legal challenge to the guidelines themselves than the issues raised by Blakely (short of rearguing Mistretta). Should the Supreme Court decide that upward departures are not severable and that sentencing juries are not allowed the Court may have to strike down the guidelines in their entirety.
So I guess my question now broadens. Should both Wilkins and (later) Breyer recuse themselves under the standard Breyer set out and Wilkins adopted?