| |
:: welcome to NINOMANIA:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me :: | |
:: Thursday, October 28, 2004 ::
:: David M. Wagner 1:43 PM [+] :: ... :: David M. Wagner 1:28 PM [+] :: ... :: David M. Wagner 8:02 PM [+] :: ... :: David M. Wagner 11:55 AM [+] :: ... PORTLAND (AP) - Although the U.S. Supreme Court has not yet ruled on theissue, a federal judge in Oregon issued an opinion this week attacking federal sentencing guidelines as an unconstitutional encroachment on judicial authority and discretion. U.S. District Judge Owen Panner's ruling Wednesday included a blistering attack on Congress and, in particular, U.S. Attorney General John Ashcroft's efforts to strip judges of their authority and discretion. Panner, whose opinion quickly rippled through legal circles across the country, determined that attempts by the congressional and executive branches to control how defendants are sentenced in federal courts overstepped the authority of Congress and the president.He's right, of course -- except he doesn't take his point far enough: just as legislatures and executives shouldn't sentence, judges shouldn't be involved in determining "sentencing guidelines." Mistretta must be overruled. :: David M. Wagner 1:17 PM [+] :: ... :: David M. Wagner 10:24 AM [+] :: ... Amazingly (to me), the government argued that, in contrast to the Washington State guidelines struck down in Blakely, "the federal guidelines should survive because they are created by a commission within the judiciary" -- the very factor that made the U.S. Sentencing Commission unconstitutional from the get-go, except the Court got that one wrong. :: David M. Wagner 3:45 PM [+] :: ... :: David M. Wagner 3:34 PM [+] :: ... :: David M. Wagner 3:27 PM [+] :: ... EDITED TO ADD: Fun though headlines like this one are (I admit to a fondness for if-it-bleeds-it-leads journalism), the actual facts seem to have been better captured by the NYPost's crosstown rival the NYDaily News, which wrote (hat-tip: How Appealling, of course): [T]he jurist was making a rhetorical point - not revealing himself to be a swinger in black robes. The quote was taken "out of context," court spokeswoman Kathy Arberg said. The text of Scalia's Harvard speech shows that his "orgies" comment came as he derided a European court decision that struck down a ban on group gay sex. "Let me make it clear that the problem I am addressing is not the social evil of the [ruling]," he said. "I accept for the sake of argument, for example, that sexual orgies eliminate social tensions and ought to be encouraged."So that's what that's all about. Looking forward to the cartoons, though. :: David M. Wagner 11:45 PM [+] :: ... |
|
|