NICK EICHER, HOST: It’s Monday morning, back to work for The World and Everything in It. Today is the 16th of April, 2018.
Good morning, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
The most recent count of openings in the federal courts stands at 149.
That’s the number of federal judges right now that President Trump has the opportunity to place on the bench.
Last week, the president named 17 judges to fill open positions, and among that number were two highly important appeals-court nominees.
He now has 69 nominations pending in the U.S. Senate.
EICHER: That’s a lot of numbers. But here’s a key fact to keep in mind.
That current number of vacancies just in the first year is very close to the modern average for an entire presidential term.
In other words, since the Reagan presidency, the average is 175 judges. That includes U.S. Supreme Court, the U.S. courts of appeals, and the federal district courts. And right now, we are at almost 150 judges.
So with the judicial nominees currently pending, there are another 80 openings for which the president has yet to put forth a nominee.
REICHARD: That really gives the president the opportunity to reshape the federal courts.
Now let’s talk about last week’s batch of 17 judges the president nominated. I phoned up a conservative legal expert, Carrie Severino. Disclosure note: Her husband, Roger Severino, works in the administration. He’s a lawyer at the Department of Health and Human Services.
Mrs. Severino is a Harvard law graduate, she clerked for Justice Clarence Thomas, and she now heads up the Judicial Crisis Network. She told me she thinks the president’s latest group of nominees is — her word — “stellar.”
Here’s what Carrie Severino had to say.
SEVERINO: It’s wonderful to see him continuing to make good on his campaign promise to appoint judges in the mold of Justice Scalia. Particularly on his latest list he’s got two state supreme court justices who were already on his short list for potential Supreme Court nominees: Justice Britt Grant of Georgia and Justice Patrick Wyrick of Oklahoma. Those two have already served with honor on their state’s highest courts. They also were both their state’s solicitor generals and handled the most significant appeals and Supreme Court challenges from their states, including challenging Obamacare and the Clean Power Plan.
EICHER: Now, onto the last of oral arguments from the March sitting of the Supreme Court.
The cases are complicated. Both arise from drug crimes. Each asks how sentencing should be handled under some arguably gray areas of the federal sentencing guidelines.
The narrow sets of facts aren’t crucial to know. In general, the criminal defendants are hoping for shorter prison terms: in one case, in exchange for his cooperation with the prosecution; in another case, because mandatory sentences changed along the way.
What the justices are asked to do is much broader than that, though.
REICHARD: They are being asked to overturn settled law, in one case. In the other, they are asked to explain what their opinions mean when five of their number cannot agree on the result or the rationale. Supreme Court decisions are supposed to direct lower courts in future cases. But what happens when there’s no majority of five to follow?
Listen to Justice Samuel Alito’s logic hypothetical.
ALITO: Let’s say that nine people are deciding which movie to go and see, and four of them want to see a romantic comedy, and two of them want to see a romantic comedy in French, and four of them want to see a mystery. Now is the — are — are the – are the two who want to see the romantic comedy in French, is that a logical subset of those who want to see a romantic comedy?
SHUMSKY: Justice Alito, the answer is it depends …
Part of the problem is a ruling in a 2011 case called Freeman. That ruling was split three ways: 4-4-1. That one was Justice Sonia Sotomayor. She came to the same conclusion as one set of four justices. Which ordinarily would make a majority five votes for that conclusion.
But she was alone in her reasoning for that conclusion. In other words, all eight of the other justices rejected her thinking.
So you can hear the trouble. Lower courts must choose which opinions govern the cases before them. Or, which set of opinions govern.
Lawyer for the criminal defendants, Eric Shumsky, wants the court to throw out established precedent. That case from 1977 called Marks said when there’s a fractious ruling, lower courts should follow the opinions reached on the narrowest grounds.
But Shumsky argued for something else. Just go for a simple five majority, and if that isn’t available, just let things “percolate.”
Justice Elena Kagan wasn’t buying it. Listen.
SHUMSKY: The older historical norm of actual majority rule would provide clarity. And absent that, percolation could occur in the lower courts, which would aid this Court in its ultimate decision-making.
KAGAN: I mean, the question is, what is the second best? We’re in a world in which the first-best option, which is five people agreeing on the reasoning, that doesn’t exist. And so everything else is going to be — is going to have some kind of problem attached to it, and we’re really picking among problems. …you say the solution that we should pick is just a solution in which this Court is giving no guidance and courts are out there on their own and doing their own thing … which sounds like chaos to me.
Well, Shumsky countered, chaos is avoidable if the Court could spin out “what ifs” in their rulings as guidance for future cases.
But Chief Justice John Roberts wasn’t so sure about that.
ROBERTS: In other words, you’re saying, let’s say someone has an absolute view of the First Amendment. You can’t have any restraints at all. And the concurring opinion says, well, I agree with that, except when it comes to, you know, Communists, then I think they shouldn’t have the right to speak. And you don’t know that the people who think there’s an absolute right may say, well, it’s absolute, but, if you’re going to carve out anybody, you’ve got to carve out everybody. And what you’re suggesting is that to make things clearer for the courts of appeals down the road, those Justices should talk about these hypothetical cases, about how they would apply the rule in the event, you know, that this or that happens. And I wonder if that’s more problematic than the difficulties you have with just sort of the counting — counting-through approach.
SHUMSKY: I don’t think it is, Your Honor.
Lawyer for the federal government, Rachel Kovner, argued to keep things just as they are now: let lower courts figure out the narrowest grounds for a ruling and go with that as precedent. Her opponent’s argument is just wrong, she says.
KOVNER: And it undercuts the principle of vertical stare decisis that generally requires lower courts to decide cases in the way that this Court would decide them.
Stare decisis is Latin for “let the decision stand.” As in, lower courts follow Supreme Court precedent. Still, Justice Kagan worried about that as well:
KAGAN: I mean, there are middle ground positions that, in a 4-1-4 case, where the four would say, well, if we can’t get what we want, we’d rather have the middle ground position. But there are some cases where there are middle ground positions which seem utterly incoherent to anybody else, incoherent or maybe it’s based on what you think is an impermissible criterion, or for some reason the middle ground is the worst of all possible worlds.
Kovner didn’t think a weird, incoherent rationale should mean throwing out the narrowest-grounds rule.
Perhaps Justice Breyer points to the eventual ruling here, in favor of the status quo. Here he addresses lawyer for the criminal defendants, Shumsky:
BREYER: Look, I don’t know what I’d write in this case…. the reason I don’t know is because I think law is part art and part science…There are no absolute rules. Marbury versus Madison, two-thirds of it is not necessary to the conclusion. So should we pay no attention to it? Of course, we pay attention to it. And then I can cite five—but I won’t—where it may be on this matter there was a unanimous court but nobody believes it … . So, if you ask me to write something better than Marks, I don’t know what to say, except what I just said, which will help nobody. (laughter) … . I mean … and now suddenly you want us to write a rule. They — they’ve done all right with Marks. Leave it alone … . And say – interpret it with common sense.
In the second case, the criminal defendants who assisted the government in its prosecutions want reduced sentences. Their lawyer, Jeffrey Fisher, argued the plain text of the law is on his side.
Arguing for the federal government in support of the sentences handed down was Eric Feigin, assistant to the U.S. solicitor general. Feigin was adamant: when the law says “the statutory minimum” sentence, that means no more reductions are possible. If it doesn’t mean that, then more disparities in sentencing are going to happen.
Not only that:
FEIGIN: All 11 courts of appeals that have directly addressed this question agree with our view of how substantial assistance sentencing works.
Justice Breyer was thinking more street level. He thought that the only person who really knows the basis of a sentence is the sentencing judge. Better to go case by case and see if that judge used the guidelines, see if he departed from them, and see if the particulars of the case mean he can depart from the minimum mandatory sentence.
Just send it back to that judge with instructions, he thought:
BREYER: Now that seems to be practical, prevents every case from trying to psychoanalyze the judge, prevents us from hearing appeal after appeal like the appellate courts would certainly have to, and, anyway, this is, you know, common sense as to how they’re supposed to work…
One friend of the court brief filed in support of the criminal defendants brought out other threads for the court to consider: judges need discretion; prosecutors don’t need even more power than they already have; and there’s no proof the minimum sentences have deterrent value or convince someone to cooperate with the government. So why stick so firmly to the mandatory sentences?
I’ll offer no predictions on these.
I got a headache just thinking through Justice Alito’s French movie hypothetical I mentioned at the start.
And that’s this week’s Legal Docket.