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Sidney Thomas? They Can't Be Serious

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The latest buzz from Washington is that no, Hillary Clinton is not on the short list for SCOTUS. (See Bill's post here.) But wait, there's more. Sheryl Gay Stolberg reports on the NYT's political blog, "an administration official said that Judge Sidney Thomas of the federal appeals court in Montana is under consideration."

What are they smoking in the White House?

Sidney Thomas is the author of what is quite possibly the worst opinion ever to issue from the Ninth Circuit, and that is saying quite a lot.  The opinion is Summerlin v. Stewart, 341 F.3d 1082 (CA9 2003) (en banc), reversed sub nom. Schriro v. Summerlin, 542 U.S. 348 (2004). It is a case study in twisting the law to achieve a desired result.

In Ring v. Arizona, 536 U.S. 584 (2002), the Supreme Court extended the Apprendi rule to capital cases, holding that the jury and not the judge must decide the factors that make a defendant eligible to be considered for the death penalty. (The actual sentencing decision is another matter.) Ring overruled a Supreme Court precedent squarely on point rejecting the same attack on the same statute, thus raising the issue of which judgments entered in reliance on the prior rule had to be set aside.

The general rule is that cases pending on direct appeal (i.e., the first review of a case, strictly on the trial record) must be reversed if the judgment is determined to be "erroneous" at the time of the appeal, even though it was correct under the law in effect when it was entered. However, under Teague v. Lane, 489 U.S. 288 (1989), cases that have completed the first round of review and are pending on collateral reviews (e.g., habeas corpus) generally need not be overturned under the new rule if they conformed to the old rule.

There are a couple of exceptions, though. One is for so-called "watershed" rules considered so essential that a fair trial is impossible without them. The Supreme Court has never found one since it set up the current retroactivity regime in 87-89, for the obvious reason that the rules that important were all made back in the Warren Court era or earlier, and there are none left to make.

The other qualification is that the Teague limitation only applies to new rules of procedure. Rules of substantive law, such as the prohibition on the death penalty for juveniles, apply to all cases.

The application of the "watershed rule" exception to Ring is one that rational people might have differed on, given the vagueness of the Supreme Court's precedents on the subject.  The Supreme Court itself ultimately split 5-4 on the question.

But could any rational person would understands the difference between substance and procedure say with a straight face that a rule on whether a question is decided by the judge or the jury is a rule of substance, not a rule of procedure? The very suggestion is ludicrous. Yet Judge Sidney Thomas wrote an opinion saying exactly that. Arizona had the misfortune to draw an exceptionally bad 11-judge pseudo-en-banc panel in the Ninth Circuit, and only 3 saw this for the nonsense it was. That is a dramatic illustration of just how far out in left field the Ninth Circuit is.

When the case reached the Supreme Court, not only did none of the Justices agree with Judge Thomas's theory, but none even thought it was worth much discussion. The majority brushed it off in a footnote, and the dissent didn't even bring it up.

Let us hope this trial balloon gets deflated pronto. Unless the White House wants a battle royal in an election year, waged on the ground where their party is weakest, crime, they would be well advised to drop this notion.

Speaking of Ring v. Arizona, Stolberg's post also indicates Janet Napolitano is being mentioned again.

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