Judging judges in Caperton v. Massey Energy:  David Rivkin, Jr. has an op-ed in today's L.A. Times urging the Supreme Court to "resist the temptation ... to make federal judges the arbiters of state court ethics," when it decides Caperton v. Massey Energy this term.  Rivkin argues that allowing federal judges to police state judges will undermine state sovereignty, weaken judicial reforms, and threaten federal judges' freedom from political interference.  Caperton was argued on March 3, 2009, and according to Rivkin, poses the question of whether elected state judges, who depend on campaign contributions during election season, should have the same discretion as appointed judges to decide whether to recuse themselves.  If the Supreme Court subjects this discretion to review in federal court, Rivkin believes that our "federalist tradition" will suffer and that the decision would imply that elected judges are less impartial than appointed judges and could lead some to conclude that no judge--state or federal, elected or appointed--can be trusted to police himself.

Prosecutor Sentencing Discretion:  Doug Berman posts a link to an article on post-Booker prosecutorial sentencing discretion at Sentencing Law and Policy.  The article, written by Alex Whiting, and titled, "How Prosecutors Should Exercise Their Discretion Now that the Sentencing Guidelines are Advisory," argues that the current Department of Justice policy--requiring prosecutors to charge and pursue the most serious, provable offense and advocate a Guideline sentence--is flawed.  Whiting argues that the DOJ should revisit its policy and return some limited discretion to prosecutors, particularly at sentencing