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Crime has a predictable history as a campaign issue.  For the past couple of elections, when crime was low and falling, it was barely mentioned.  But when crime is surging, as it was in 1968, 1972, and 1988, crime policy became a major battleground. Richard Nixon, though widely thought to be a shady character, rode it to two easy victories.

Will something similar happen this time, as Donald Trump talks tough while Hillary Clinton embraces the mantra of "over-incarceration"?  Sen. Jeff Sessions thinks it might.  As the Washington Examiner reports:

FBI Director James B. Comey had an odd plea to Washington reporters when he met them earlier this month. Please, he said, write about the surge of murders rocking the nation's cities.

"I raise it with you all because I hope it's being reported on at local levels, but in my view, it's not in the attention of the national level it deserves," he said. "I am in many ways more worried, because the numbers are not only going up, they're continuing to go up in most of those cities faster than they were going up last year. I worry very much. It's a problem that most of America can drive around."

The media dished out a few stories and moved on. But soon the issue will receive attention on the national political stage as the two likely presidential nominees prepare to address it.

"Crime is a factor that I think is going to play bigger in this election than people realize because crime is going up, drug addiction is surging -- 120 deaths a day from drug overdoses. It's just a stunning number," [said] Sen. Jeff Sessions, Alabama Republican and adviser to Donald Trump.

One must wonder whether Trump's recent big advance in the polls reflects the country's increased alarm about spiking drug abuse and murder.

Three explanations strike me as plausible.

First, he believes that every ex-con deserves to "participate in democracy" regardless of how grievous his crime or how thoroughly it demonstrated contempt for law.

Second, he wants to increase the number of Democratic voters in Virginia to help his pal Hillary in the forthcoming Presidential election.

All the News That's Fit to Slant

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The New York Times occasionally has excellent and insightful news articles.  Then there's stuff like this, "reporting" on Donald Trump's speech accepting his NRA endorsement:

Mr. Trump, whose record of sexist remarks, among other things, has left him at a potentially crippling disadvantage among female voters, polls show, appealed directly to women in his speech, imbuing his defense of gun rights with an undercurrent of fear.

"In trying to overturn the Second Amendment, Hillary Clinton is telling everyone -- and every woman living in a dangerous community -- that she doesn't have the right to defend herself," Mr. Trump said. "So you have a woman living in a community, a rough community, a bad community -- sorry, you can't defend yourself."

If Mr. Trump's comments seemed reminiscent of an era when crime rates were far higher -- the Willie Horton ads attacking Michael S. Dukakis, the Democratic nominee, in the 1988 presidential race came to mind -- they also appeared somewhat at odds with the broad bipartisan consensus on the need to reduce incarceration rates and prison populations: Mr. Trump sought to frighten voters about the idea of criminals being released from prison.

The idea that this is a news story, as opposed to an editorial hatchet job, is preposterous.  Let's take it one line at a time.

Donald Trump's Pretty-Short List

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For many of us who were less than enthused to see Donald Trump win the Republican nomination, the general election choice nonetheless seemed to be a clear one based on the kinds of judges the respective nominees would appoint, especially to the Supreme Court.  The Trump campaign apparently wants to reinforce that point by releasing a list of possible Supreme Court appointments.  Bill noted the release a few minutes ago, and Jill Colvin and Mark Sherman have this report for AP.  The list is:

Steven Colloton of the Eighth Circuit (Iowa)
Allison Eid of the Colorado Supreme Court
Raymond Gruender of the Eighth Circuit (Mo.)
Thomas Hardiman of the Third Circuit (Penn.)
Raymond Kethledge of the Sixth Circuit (Mich.)
Thomas Lee of the Utah Supreme Court
Joan Larsen of the Michigan Supreme Court
William Pryor of the Eleventh Circuit (Ala.)
David Stras of the Minnesota Supreme Court
Diane Sykes of the Seventh Circuit (Wis.)
Don Willett of the Texas Supreme Court

I am not familiar with the jurisprudence of all 11, but I do think that William Pryor would make a very fitting successor to Justice Scalia.  Confirmation would be a bloody fight, but if we hold the Senate it is a fight we would win.

The larger question is whether Mr. Trump can and will pivot from the crass bluster that got him this far into a man of serious policy, capable of winning the general election and then being an effective President.  Many have serious doubts, but this looks like a good start.

Trump's Supreme Court Candidates

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ABC News has a story out today listing eleven candidates Donald Trump says he would consider for the Supreme Court.

I know three of them slightly, none of whom I am going to name.  They would be excellent. My one big regret about this list is that it does not include former Solicitor General Paul Clement.

The difference in probable Supreme Court picks between Sec. Clinton and Donald Trump remains, in my view, the most important reason to be, if not enthusiastic about Trump, at least not in hellish despair.
In my last post, I gave a preview (courtesy of Harvard Law Prof. Mark Tushnet) of how dreadful a Clinton-appointed Supreme Court would be.

I am unhappy to report that that's not the principal reason Sec. Clinton should be denied the keys to the White House.  The principal reason is that, as she has already made clear, she will use the awesome power to prosecute as a political tool  If that is not the road to tyranny, what is?

That's a bold proposition, sure.  I invite readers to draw any other conclusion after reading the following account by Stephen F. Hayes in the Weekly Standard.

What to Expect from a Hillary SCOTUS

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Many conservatives find the upcoming election choices less than uplifting.  But either Hillary or The Donald is going to be the next President; it would take a miracle for anything else to happen.

So the country will have to choose.  In considering what to do, one of the most important factors is what kind of Supreme Court the next President will appoint.

With Trump, it's hard to know.  Two possibilities he has named, Judge Bill Pryor and Judge Diane Sykes, are excellent in my opinion.  But one never knows for sure what's going to happen with The Donald.

Things are easier to predict with Hillary.  She's a child of the Sixties, has moved even further to the left to hold off Bernie Sanders, and has embraced the toxic Black Lives Matter movement.

Lest there be any doubt about what to expect from a Hillary-appointed Court, Mark Tushnet, a liberal Harvard Law professor, pulls back the curtain in this revealing piece. Suffice it to say that we'll be longing for the good ole days when Justice Ginsburg felt like Felix Frankfurter.  
The effort to engineer mass sentencing reduction took a major hit when Sen. Marco Rubio announced his opposition.  As the Washington Examiner discloses:

Marco Rubio [has become] a firm opponent of the bipartisan sentencing reform legislation pending in the Senate, following a review of the bill and multiple conversations with Republican proponents of the package.

"I just have too many concerns about the spike in violent crime in this country and what impact that law would have on it," Rubio told the Washington Examiner. "I just can't support it...There are people who are supporting this proposal who I have a lot of respect for, and so I took the time to review it," Rubio said. "I think, unfortunately, if you apply it to some of the cases I've asked prosecutors to look at, it could result in the release of dangerous people who, maybe, pled down to a lower charge but ultimately are very dangerous."

I thought it noteworthy, and a credit to Sen. Rubio, that he asked prosecutors independently to look at the bill.  Many senators just rely on white papers from interest groups and staff work, which can range from brilliant to appalling.

Sen. Rubio's Presidential campaign foundered, but he is still viewed as an influential voice among Republicans.  This is not a year where one wants to have a lot of confidence making political predictions, but I think Rubio's opposition is very bad news for sentencing reform's future. 

Draft Jim Comey for a Third Party?

The next President is almost certain to re-shape the Supreme Court.  If it's Sec. Clinton, there is a strong likelihood we'll go back to the disastrous, Constitution-free Court of the Sixties, and will live under it for a long time.  If Donald Trump becomes President, no one knows what to expect.  One of many problems with Trump is that he'll say one thing in the morning and the opposite that afternoon.  And while, in my opinion, it's likely his appointees would be notably better than Clinton's, you wouldn't be surprised with more selections like Justice Stevens and Justice Blackmun (or Earl Warren for that matter).

The Court with Justice Scalia on it was hanging by a thread, if that.  The question now is what can be done to rescue the judicial branch from the unhappy fate that, from the present perspective, looks likely to befall it.  (This is not to mention the fate awaiting the rest of the government, and the country).

I will not be the first to suggest that consideration be given to a third party.  My candidate is FBI Director and former Deputy Attorney General James B. Comey.

Bobby Jindal on Trump v. Clinton

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The former Governor of Louisiana has this op-ed in the WSJ:

I think electing Donald Trump would be the second-worst thing we could do this November, better only than electing Hillary Clinton to serve as the third term for the Obama administration's radical policies.
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The next president will make a critical appointment to the Supreme Court, who will cast the tiebreaking vote in important cases that will set precedents for years to come.
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In my lifetime, no Democrat in the White House has ever appointed a Supreme Court justice who surprised the nation by becoming more conservative, while the opposite certainly cannot be said for Republican appointments. Mr. Trump might not support a constitutionalist conservative focused on original intent and limits on the court's powers. He may be more likely to appoint Judge Judy. However, there is only a chance that a President Trump would nominate a bad justice, while Mrs. Clinton certainly would.
I don't entirely agree with the first sentence.  Electing Bernie Sanders would also be worse, for example.  But I assume that Gov. Jindal is assuming that Sanders is not a realistic possibility, which is a pretty fair assumption.

And it's not just a bad justice.  The next President may very well get multiple appointments and shape the Court for a generation to come.

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.

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