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Hope and Change

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One year ago, things looked grim for the forces of justice. A great deal of progress had been made in the previous 20 years, but a real danger of seeing it all undone was there. It was not just that the White House and both houses of Congress were in the hands of the Democratic Party. That had been the case in much of the post-WWII era. The danger was that the Democratic Party itself was in the hands of its further left (or "lefter") wing. From VJ Day through 2004, every time the Dems nominated their lefter candidate, they lost the general election. Now a disciple of Saul Alinsky (author of Rules for Radicals) was in the White House, and Nancy Pelosi (D-Wackoville) remained Speaker of the House. Although crime had been a nonissue in the election, friends of criminals were ascendant. What would happen next? Would the Supreme Court be filled with younger versions of Judge Reinhardt? Would the habeas reforms of AEDPA be repealed? It was not out of the question.

It didn't happen in the first year. I don't doubt that they would have liked to do these things, but they were not high on the agenda. In Supreme Court nominations, an unnamed White House official told the press "on background" that Democrats are always afraid of being pegged as "soft on crime," and Justice Sotomayor's prosecutor background and moderate-to-tough record in criminal cases as a judge were therefore considered pluses. We dodged a bullet (I think) because politics trumped ideology. On the legislative side, there apparently just wasn't room on their very full plate for rolling back the habeas reforms of AEDPA.

And what will the next year hold? Well, if they were scared of the "soft on crime" tag before, they should be terrified now. The off-year election is one year away. That is a point in the cycle in which the White House party historically loses seats, and it will be one year after Republicans won decisively in a state Mr. Obama carried and, more significantly, also won in a very heavily Democratic state. It will be an election in which war and the economy will likely be reduced as issues below what they were in 2008, raising the possibility that crime will resurface as an issue.

Let us suppose, hypothetically, that a Supreme Court Justice retires this June, five months before the election. Will this White House nominate one of the many Court of Appeals judges who delights in letting murderers off death row? Not likely. Will Pelosi, Reid, and Co. ask their members to pass pro-murderer legislation? Not likely. If they do, will members in genuinely contested seats vote for it? Not a snowball's chance in hell.

There is good reason to hope that the change already achieved will be maintained for the foreseeable future. Nothing good legislatively will come out of Nancy Pelosi's Congress, but they probably will not do much harm in the criminal law. Further positive change is quite likely in the judicial arena, and good legislation is a possibility in the next Congress. If the Republicans gain a substantial number of seats they might take control, but even if they do not the Democrats might see the light and dump their present leadership for people closer to the American median. It is not too much to hope that the 112th Congress will be in the control of persons of sense, and that would be a most welcome change.

1 Comment

"Will this White House nominate one of the many Court of Appeals judges who delights in letting murderers off death row?"

Isn't it amazing that this is not hyperbole? There are judges who "delight" in letting murderers off the row. And they get often get adoring press.

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