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The Tea Party Patriots

Last night, I had the opportunity to talk about proposed sentencing reform legislation in a webinar broadcast by the Tea Party Patriots. (Next month, I'll do so with a politically quite different group, the American Constitution Society National Convention).

The Patriots asked if I would post my remarks, and I am happy to do so.  I'll start out by saying here what I said in the webinar: There are some good people supporting the bill, like Michael Mukasey and Sen. Mike Lee, but also some good ones opposing it, like Sens. Jeff Sessions, Tom Cotton and David Perdue.  Sen. Ted Cruz likewise opposes bill, although he voted for a somewhat similar bill in the last Congress.  And Sen. Orin Hatch opposes the bill at least until it is re-written to include mens rea reform  --  a dim prospect given the Administration's adamant opposition. 

What's different is that, while no extreme leftist supports preserving our present, successful system  --  a system that has helped massively reduce crime  --  many support going back to what President Reagan called the failed policies of the past: Feckless faith in untethered judicial discretion, and a misguided belief in the efficacy of rehabilitation. Among those supporting a return to the failed ideas (and, as night follows day, the failed results) of the past are George Soros, the ACLU, the SEIU, and of course the entire Obama Administration.

Conservatives in the Tea Party might want to think twice before joining forces with that group.

Anti-Suicide Pact

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Ted Cruz and John Kasich have entered an agreement to prevent the Republican Party from committing the mass suicide of nominating a candidate disliked by 2/3 of the American people.  James Taranto has this column at the WSJ.

Why Is the SRCA Sinking in the Ooze?

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The Senate's bill for mass reduction of federal felony sentences (called sentencing "reform" to keep it opaque) passed out of the Judiciary Committee months ago by a lopsided 15-5 vote.  But it's been downhill ever since.

Why?  Several reasons, I think.

1.  Two of the most fearsome crimes, murder and heroin trafficking, are going through the roof from coast to coast.
2.  The Sentencing Commission disclosed that nearly half of federal offenders recidivate, most in their first or second years out.
3. The Wendell Callahan sentencing reduction/child murder scandal has displayed the potentially grotesque costs of early release.
4.  It has finally dawned on lawmakers that those who'll pay the price of more crime are minorities and the poor.
5.  The proposal for retroactive reductions, meaning a boatload of additional costly litigation, is unpopular in the House.

And there is one more reason, highlighted by today's story in the Washington Examiner:  Democrats are refusing to go along with the one element of true criminal justice reform upon which the huge majority of sensible people would agree  --  that no one should be held criminally liable unless he knew or had some fair reason to know that what he was doing was wrong.

A Second "Birther" Decision

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This decision was issued Tuesday by a judge in the New Jersey Office of Administrative Law:
The President, the Attorney General, and a great deal of the political establishment in Washington vocally back legislation to provide mass, and retroactive, sentencing reduction for federal felons.  Drug traffickers lead the list of intended beneficiaries. The establishment politicians call their proposed reductions sentencing "reform," in a somewhat half-hearted attempt to disguise what they're actually up to.  

It's simply beyond sensible argument that such "reform" would mean more crime faster, the federal recidivism rate being at about 50%.  "Reformers" like to fuzz over this fact, but the numbers don't lie.  "Reformers" think that paying the price in increased crime (which they either deny, minimize or garble) is worth it because America has just gone overboard with incarceration, or should adopt a medical model of crime, or is a racist pigsty, or some mix of the three.  Some also believe, or say they believe, that prison costs too much, although none has yet taken my bet the the DOJ budget will increase whether this legislation passes or not.  At some level, they know that "reform" will not save the taxpayers a single dime; the money will just get spent on different DOJ projects.

Career Assistant US Attorneys  --  the non-political, line prosecutors who have to deal with reality rather than indulge Al Sharpton's ideological fantasies  --  are sounding the alarm.  It take guts to do so.  No one wants to be on the outs with the boss, particularly when the boss is the Attorney General.

No AUSA has been more outspoken, or more courageous, than the head of the National Association of Assistant US Attorneys, Steve Cook.  Although I have never met Steve, I am proud to have corresponded with him and to have benefited often from his knowledge.

Congressional Quarterly (link regrettably unavailable) has taken grudging note of Steve's courage and impact.  I reproduce its April 4 article about him after the break.

Bill Clinton Gets It on Black Lives Matter

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Bill Clinton was the last President in this country widely viewed as successful.  I have my doubts, stemming largely from his failure to counteract the growth of the terrorist threat, but I understand the reasons for his popularity. For one thing, crime started its long, astonishing descent under some of the sentencing laws he supported and signed (and his wife now denounces).

Today, Mr. Clinton told his hecklers in the BLM movement what they need to hear but are certain to ignore:  "You are defending the people who killed the lives you say matter."  He could have added that BLM is attacking the best friends preserving black lives ever had  --  more police, more aggressive policing, and more incarceration of the thugs and drug pushers who prey disproportionately on blacks.

The Weekly Standard has the story and the tape of Mr. Clinton's remarks.  Heather MacDonald's take on them is here.
A mostly off-topic note on yesterday's apportionment decision, Evenwel v. Abbott.

A Crisis in Overdose Deaths

While Congress plays footsie with reducing prison terms for drug dealers (as proposed in the SRCA), the people who manufacture and sell this poison are busier than ever.  Hence, this story from CBS News:  Opioid Overdoses Kill 10 People in 12 Days in Sacramento area.

[Jerome Butler's] death was one of 10 in the Sacramento area in just 12 days that doctors have traced to heavy fentanyl-laced narcotics being sold as generic opioids on the streets.

"This is not bathroom biochemistry. It's going to be very sophisticated." Sophisticated and deadly, said Dr. Timothy Albertson, a toxicologist at UC Davis Medical Center.

"It is probably 100 times more potent that than morphine."

DEA special agent John Martin says the illegal fentanyl has made a long journey to get here.

"We believe it is manufactured in China, it is being distributed to Mexico, it is brought up through the normal drug smuggling routes of the southwest border."

In other words, this is not the legitimate pharmaceutical industry, nor is it over-prescribing pain doctors.  It's the drug cartels and their street pushers  --  exactly the people backers of the SRCA blandly (and deceitfully) describe as "low-level, non-violent offenders."

Perhaps the comments section will tell us why people who distribute this stuff on Sacramento's streets should have softer sentencing at the very moment their quite lucrative business is making life busy in the morgue.

After Justice Scalia's death, I wrote this post on his successor and the Great Question.  Today Juan Williams has an op-ed in the WSJ on the same theme:  The Never-Ending Battle Over How to Read the Constitution: Whether Supreme Court nominee Merrick Garland is a 'centrist' distracts from a much bigger issue.

The article concludes:

In today's debate regarding Merrick Garland's nomination to the court, much of the discussion concerns whether or not he is a "centrist." But the real question, for both sides, is how he regards the Constitution. On that point it is clear from his record that Judge Garland is firmly in the "living document" camp. The push-pull over the Constitution and the Supreme Court is a battle without end, and in the current phase with the eight-person bench likely to divide 4-4 on important cases, the contrast between the court with Scalia on it and the court with Judge Garland or any other Democratic nominee couldn't be greater.
Of course, there is no chance whatever that President Obama will nominate anyone on the correct side of the Great Question, and if Hillary Clinton is elected in November there is no chance whatever that she will.  A week ago, Stanford Law Professor and former Circuit Judge Michael McConnell suggested a course of action in this op-ed, also in the WSJ.


Philip Bump at the WaPo's Fix political blog has this look at general election match-up polls. Not only has Donald Trump come off the worst in heads-ups matches with Hillary Clinton throughout the election season, but he is trending downward.  Ted Cruz does better, and just as importantly he is trending up.

John Kasich does the best of the three, but frankly I don't see any substantial chance of him being the nominee.
Results in the Arizona Republican presidential primary are:


Huh?  How did candidates no longer in the race get 16.1% of the vote?  How did a candidate not in the race beat one who is for third place?

Early voting.  Whatever the merits of early voting may be for the general election, it is a bad idea to vote too early in a primary.  You may be throwing your vote away.

Divisiveness, Hypocrisy and the Left

Heather Mac Donald has an insightful piece in the National Review in which she discusses the most recent liberal hypocrisy on the concept of divisiveness.  She notes that commentators in mainstream media "have been shedding crocodile tears" over Donald Trump's "divisive rhetoric" and "failure to unify the country," which is quite confounding coming from "the same worthies who have incessantly glorified the Black Lives Matter movement over the last year and a half."  The article is titled, "Don't Blame Trump for Divisiveness When the Left Says Stuff Like This."  Some of that stuff:

  • A Black Lives Matter march last October featuring "F**k the Police," "Murderer Cops" and "Stop Police Terror" chants
  • A president who "routinely claims that police and the criminal-justice system treats blacks differently than whites" even in the absence of empirical data
  • A Democratic presidential candidate, Hillary Clinton, who says it's a "reality" that cops see black lives as "cheap"
  • Another Democratic presidential contender, Bernie Sanders, who claims the killing of unarmed black people by police officers has been going on "decade after decade after decade"
  • Academic rhetoric and identity politics, which "immerses students in the counterfactual propaganda that the world is divided between people enjoying white-male-heteronormative privilege and everyone else"

Mac Donald concludes:

To the mainstream media, Black Lives Matter's claims and academic identity politics are not "divisive," they are simple truth. But if you don't accept those truth claims -- and the data refute them -- the vitriolic anti-cop rhetoric of the last year and a half, and its underpinning in academic victimology, easily match the alleged divisiveness of anything that Trump has said.

The Evolving Constitution

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One of the classic debates in constitutional law is about whether the Constitution "evolves."  This is, for example, at the center of much of the discussion concerning the death penalty and the Eighth Amendment, as "currently understood."  The battle between Justice Scalia's concurrence in Glossip and the two-Justice dissent filed by Justice Breyer is an apt illustration.

One of the country's leading senators has seen the Constitution evolve dramatically about a question now much in the news, given the pending Supreme Court nomination.
Judge Garland seems to me to be a bright, fair-minded and decent man.  He has experience at a high level in the Justice Department.  Taking what might be called a neutral view, he is qualified for the Supreme Court in all the usual senses of that word.

The problem is that I don't take a neutral view, and  --  let's be honest about it  --  neither does anyone else.  Certainly the President didn't when he nominated Judge Garland.  Instead, the President knew what the New York Times (yes, that New York Times) now discloses (emphasis added):  "If Judge Garland is confirmed, he could tip the ideological balance to create the most liberal Supreme Court in 50 years."

This is the Times' story, mind you.   Note in particular its graph, showing that a Justice Garland would vote squarely in the middle of the liberal bloc, a tiny bit to the right of Ginsberg and a tiny bit to the left of Kagan.

What this means is that Republicans are not taking that much of a gamble in refusing to move him along the path to a vote.  The likelihood is that, even if there is a Democratic President and Senate in 2017, the nominee to replace Garland (if he gets replaced, which is also unknown) would not be that much more liberal, if at all.

Merrick Garland, a Matter of Timing

I have argued that the Republicans are correct in refusing to consider any appointment made to SCOTUS by President Obama. Judge Garland is a smart and decent man so far as I have any reason to believe, but that is not the point.  The point is that he is all but certain to be the fifth vote for anything important on the Left's Supreme Court agenda.  To take two examples, the idea that either Heller or Citizens United would survive Garland's elevation is just wishful thinking.

As Steve Erickson has noted, the Court now occupies such an outsized place in American life that its view of its role, of the Constitution, and of democratic self-rule has become too important to just pass over.  This is not a matter of partisan "bickering" or payback.  It's about the direction of American law itself.  

It's quite true that uncertainty abounds about who will succeed Obama, and what that person would do about Supreme Court nominations.  The Republicans are surely taking a risk that HRC will be elected and choose someone farther to the left.  They are also taking a risk with Donald Trump (although Trump's named Supreme Court candidates  --  Judges Diane Sykes and Bill Pryor  --  would be excellent choices).

But hold on there.  The risk is not as big as it's being advertised.

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