04 October 2004

Wishing T. Christopher Kelly and Rosemary Scapicchio the Best at Today's Booker & Fanfan Oral Argument and "S.Ct. v. Congress on Federal Sentencing"

Today our best wishes go to attorneys T. Christopher Kelly, of Madison, Wis., who will argue on behalf of respondent Booker, and to Rosemary Scapicchio, Boston, Mass., who will argue for respondent Fanfan. There will be 2 hours of argument. Each of them will have a ½ hour, and Acting Solicitor General Paul Clement will have the other hour.

Professor Berman indicates at Sentencing Law & Policy that he finds it "a bit of news [that Acting Solicitor General Clement will be arguing both cases] because Deputy Solicitor General Michael Dreeben is reputed to be the 'point person' on these cases, and he argued on behalf of the United States as amici in Blakely." I think they are probably trying to avoid having the same attorney now telling the Justices that the differences between the Washington State sentencing guidelines and the federal sentencing guidelines are all of a sudden of Constitutional significance. It should be interesting to see how much time the Court actually devotes to questions addressing the applicability of Blakely to the federal sentencing guidelines as compared to the more complex issue of severability.

I believe the respondents briefs are excellent, as are those of many of the amici filing in their support. Never having done it, I can only assume that arguing any case, let alone one of the importance of these consolidated ones, before the Supreme Court would give an attorney some butterflies, so we wish T. Chris Kelly and Rosemary Scapicchio the best of luck.

It is unfortunate that we will not be able to listen to the argument, and I only hope that a transcript does not take long to be posted somewhere. Jason Hernández over at Blakely Blog will be attending, as will Professor Douglas Berman from Sentencing Law & Policy. Jason expects to have something up at Blakely Blog by about 4 p.m.

We predict that the Court's Blakely majority will hold together and apply Blakely to the federal sentencing guidelines. We have no idea what the Court will do as to the issue of severability. But it appears to us that whatever the Court does on severability, the next move will be in Congress. We think that this post at Sentencing Law & Policy which quotes a set of "DC Observations" from Baylor Law Professor Mark Osler is a worthy but depressing read as to the Congressional mindset. But perhaps the last word will not be more mandatory minimums as many think is the likely Congressional reaction. Professor Berman has a very encouraging post in which indicates that
Though everyone seems to assume mandatory minimum sentencing is immune from the Apprendi/Blakely rule due to the High Court's decision in Harris, Justice Breyer expressed great reservations about his vote in that case. If Congress passes an array of mandatories after Booker and Fanfan, serious reconsideration of Harris might come sooner rather than later.
He goes on to mention the Angelos case now pending before District Judge Paul Cassell in Utah., of Croxford fame. Check out those two posts at SL&P.

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