Comments on: A Defining Opinion On Federal Criminal Sentencing

By: MJ

MJ — Mon, 03 Apr 2006 15:24:53 +0000

Let me get this straight: A district court judge downwardly departs on a sentence, that downward departure is reversed on appeal by the 8th Cir. and remanded for re-sentencing not inconsistent with the 8th Cir.’s opinion, on remand the district court judge explains to the 8th Cir. why they are mistaken and gives the same sentence. I don’t find anything in his opinion to be “engaging.” It reads like a law review article because it doesn’t even attempt to be a judicial opinion. I’m sure that Judge Bennett would not stand for such a usurpation of his authority by a party for one second, yet he flouts the 8th Cir.’s remand. Why doesn’t Judge Bennett just come out and say “I am the law.”

It is simply Orwelian for anyone to say that Judge Bennett’s actions are not judicial activism.

By: Orin Kerr

Orin Kerr — Sat, 01 Apr 2006 03:16:43 +0000

Another interesting tidbit — Judge Bennett recently gave an address slamming judicial conservative “activists.” Bennett, himself a Cliinton appointee, said:

“I’ll debate anybody, anywhere, anytime on that issue about who the judicial activists are in the federal judiciary. They’re not the Clinton appointees or the so-called liberal justices, I’ll guarantee you that.”

I wonder if Judge Bennett would classify his own opinion as activist?

By: Orin Kerr

Orin Kerr — Sat, 01 Apr 2006 02:33:24 +0000

I suppose every legal decision that intentionally reaches a result in violation of binding law has engaged in “redefinition” of the law using a “problematic approach to judicial hierarchy.” I guess I don’t see what was so sophisticated about the opinion, though.

By: Dan Filler

Dan Filler — Fri, 31 Mar 2006 21:48:42 +0000

Orin, I agree with you on the meta-issue: his approach to judicial hierarchy is problematic. But I do think that a 50% departure may not be extraordinary. And I also share his concerns about over-empowerment of prosecutors. The reason I blogged about the case, though, was that the opinion begged for at least a bit of rhetorical analysis. I could probably spend two or three good classes talking about what Judge Bennett did here, how he did it, and whether it was a good idea – either legally or rhetorically.

By: Orin Kerr

Orin Kerr — Fri, 31 Mar 2006 21:33:43 +0000

Dan,

Does a district court judge’s job include “redefining” circuit law? I don’t understand what is so strong about the opinion, given that he seems to be thumbing his nose at the judges above him. Presumably Judge Bennett would not be pleased if litigants in his cases decided to “redefine” his rulings; I’m not sure why it is laudable that Judge Bennett feels it is proper to do the same to the Eighth Circuit.

What am I missing?