Monday, August 06, 2012


August Reruns: My favorite posts

From October 2, 2007:

Got me on the court and I'm trouble,
[Messed] around and got me a triple-double...
Today, it was a good day.

Well, no. I'm not capable of a single-single, in basketball anyways. But today was a good day, if you are me and not Ice Cube. We probably have different views of success.

Today was the argument in Kimbrough v. United States, challenging the holding of the Circuit Courts that a district judge is not free to depart from the 100:1 ratio between crack and powder cocaine because she does not agree with that ratio. For seven years now, I have have been working to get judges that discretion-- writing articles, litigating it, and trying to influence Congress. Today was the culmination of that work, by me and many others.

My favorite part of the argument this morning was when Michael Dreeben (arguing for the government) pointed out that nine circuits agreed with him and a Justice of the United States Supreme Court said, basically, “La-di-da.” The Justice accompanied this dismissal with a dramatic wave of his hand that signified the change that may be coming.

More importantly, Chief Judge Roberts seems to think that if Congress mandates a 100:1 crack/powder disparity in the sentencing guidelines, they need to do it through, like, a law, rather than via inference. Having made this precise argument to several Courts of Appeal to only blank stares and rejection, it was wonderful to hear the Chief Justice raise this point so forcefully, especially since he may be the fifth vote in our majority. What he said in response to Dreeben's inference argument, verbatim, was this: "No, Mr. Dreeben, your office used to argue that when Congress wants to do something, there's a way to do it. They pass a law through both houses, then the President signs it. That's the only way they can give legal effect to their intent." He later rooted this concern in the fact that since Booker, Congress has chosen to take no action. This is an argument that was first put forward by Benham and I in our Spears petition (the reply brief, actually), and later incorporated into the Petitioner's briefs in Kimbrough.

So now there is some hope. It may be, it just might be, through failure after failure after failure, that we played a small role, together with many others, in changing something that is wrong in a subtle and cruel way, a grinding engine built of inattention and fear.

Afterwards, I walked out of the Court and down the high marble steps with Acosta and Benham, feeling euphoric. There was an amazing and beautiful tableau before us—the news teams waiting at the bottom of the steps, the Capitol Building in the near distance, and beyond that the Washington memorial and the crystal-clear blue sky of early fall in Washington. I stopped them, as we were alone on those steps, and took it all in.

There may be only one such moment in a lifetime, and I wanted to breath it in deeply.

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