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Taking Down the Sword of Damocles

The period of greatest danger for the cause of justice is drawing to a close.  In the 2006 and 2008 elections, for reasons that had nothing to do with criminal law, political forces friendly to the criminals gained greatly in strength.  This development raised the danger that much of what we had achieved in the 1980s and 1990s (achievements partly responsible for the historic drop in crime in the 90s) could be undone.  Indeed, the death penalty was officially abolished in two states that had no death penalty as a practical matter.  With substantial statehouse shifts in the Republican direction, we can likely make progress toward turning the debate back to fixing the appellate process, at least in many states.

With both houses of Congress and the White House in hostile hands, the possibility that major adverse changes in federal law would be pushed through was also a grave danger. Fortunately, crime was not high enough on the Obama-Pelosi agenda for major damage to be done by the 111th Congress.  Yesterday, the people gave control of the House of Representatives to the Republicans for the 112th Congress.  With the Senate and the White House still in Democratic hands, there will probably be no major legislative changes in either direction.  That is a less than optimum prospect, but it is far better that what we have faced for the last two years.

What about judicial appointments?  The Republicans did not take control of the Senate, and Patrick Leahy will still be waxing smug, self-righteous, and insufferable from the chair of the Judiciary Committee.  All of the Administration's nominees will get out of committee.  However, the Democrats set the standard during the Bush Administration that filibustering nominees for ideological differences is acceptable practice. The Republicans need not and should not unilaterally disarm, and their ability to filibuster is greatly enhanced for the 112th Congress.  Perhaps we will see more moderation in the nominees.  The federal courts will still be changing in the wrong direction for the remainder of the Obama Administration, but hopefully not as far in that direction as we had feared.

Senator Russ Feingold, who presided over the exoneration circus in 2002, will not be back.  See my statement here.  Thank you, Wisconsin, thank you.

Many important criminal law decisions remain entirely executive, though.  President Obama can still transfer as many terrorists to civilian court as he likes.  The executive branch can still release alien felons who should be deported.

The danger is reduced in intensity, but it is not over.  We still have much to do.


...and Holder can continue to unequally enforce the law of the land by dismissing the New Black Panther party as a "fringe" insignificant group not worthy of his attention.

Sure enough, his fringe group reared their ugly, menacing, head again yesterday at a Houston polling site.

Add "execrable" to the list of adjectives that describe Pat "Gold Standard" Leahy.

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