Over at TNR Online, Will Baude draws a connection between the lower court reaction to Blakely v. Washington and the ideology of lower court judges. According to Will, Blakely has caused an upheaval in the lower courts in part because lower court judges are ideologically sympathetic to the case and want to construe it broadly. Will argues that this highlights the importance of the appointments process governing lower court nominees.
Specifically, Will suggests that ideology can explain the difference between the tremendous impact of Blakely and the modest impact of federalism decisions such as Lopez and Morrison:
[I]t didn’t have to be this way. The lower courts could have read the [Blakely] decision more narrowly; pointed out that it didn’t necessarily apply to the Federal Sentencing Guidelines; and then, in the absence of a direct invitation from the Court, ignored the ruling’s broad implications. Indeed, sometimes they do precisely that. When the Court decided a pair of cases that curtailed the power of Congress over states, no legal revolution followed, despite similar warnings by dissenters and academics: The logic that struck down a gun-control law (Lopez in 1995) and a statute focusing on violence against women (Morrison in 2000) could have been extended to federal laws dealing with arson, pornography, and marijuana–but lower courts have largely failed to take the bait.
. . . .
Blakely caught fire, and Lopez and Morrison failed to, because of the mix of judges on the lower courts. The majority in Blakely was an ideological blend–two of the Court’s most conservative justices and three of its most liberal. On the other hand, Lopez and Morrison were decided entirely by the Court’s more conservative wing. The lower courts, after President Clinton’s presidency, are now a mix of the mostly conservative judges appointed by Reagan and Bush I and the largely pragmatic liberals Clinton selected. Blakely resonated among the lower courts, where Lopez and Morrison did not, in part because the ideologically mixed majority that decided it closely matched the ideological composition of the circuit courts that have started to implement it. That is, it requires a critical mass of judges sympathetic to the reasoning behind a High Court decision for any such ruling to catch fire in the lower courts.
I respectfully disagree. Will is quite right that the ideological dispositions of lower court judges matter, and are very important to the development of the law. The response to Blakely isn’t a good example, however. If anything, the reaction highlights how legal reasoning can trump questions of ideology.
The problem with Will’s argument is that Blakely is the latest in a string of Supreme Court cases, and the lower courts are responding to Blakely very differently than the earlier cases. When the Supreme Court decided the first of the cases, Apprendi v. New Jersey, back in June, 2000, the lower courts did pretty much what Will suggests. They “read the decision more narrowly; pointed out that it didn’t necessarily apply to the Federal Sentencing Guidelines; and then, in the absence of a direct invitation from the Court, ignored the ruling’s broad implications.” Apprendi was a lot like Lopez; it was a modest step in the direction of major change, but left unclear whether it would be followed by a real revolution.
Anyone could see when Apprendi was decided that it might revolutionize criminal practice under the Guidelines. I was prosecuting a drug case in federal court in Virginia at the time, and I chose to submit the drug quantity to the jury out of an abundance of caution. But on the whole, lower courts treated Apprendi a lot like they treated Lopez. For the last four years, lower courts have been flooded with Apprendi claims. Those claims mostly have been rejected.
What makes Blakely different? Blakely is the first Apprendi case to involve a sentencing scheme quite similar to the Federal Sentencing Guidelines. Regardless of their views, federal lower court judges can read Blakely and see that its reasoning places routine federal court sentencing practices in doubt. Whether they think Blakely is right or terribly wrong, it’s a hard decision for a lower court judge to ignore.
UPDATE: Eric Muller adds some interesting thoughts.
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