The much anticipated decision in Rita v. U.S. was released this morning. Early reports (here and here) from Sentencing Law and Policy tell us that the decision upholds a presumption of reasonableness at the appellate level for sentences that fall within the federal sentencing guidelines.

The more interesting question is whether sentences that are less harsh than the guidelines suggest may be viewed with greater skepticism on appeal simply because they fall well outside the guidelines. (Sentences that greatly exceed the guidelines seem rarely to trouble appellate courts.) That question would have been addressed in the Claiborne case if Claiborne hadn't been killed. We'll have to wait until next term for an answer.

The Senate version of legislation to renew the Higher Education Act, notable for its increased funding of Pell Grants, also includes a welcome but less noticed provision:

The Senate legislation would also eliminate from the federal financial aid application a controversial question asking whether applicants have been convicted of drug possession while receiving federal student aid. That question has been used to identify and strip financial aid from thousands of students. While the Senate bill would leave the drug possession penalty in the law, dropping the question from the federal financial aid form would make enforcement of the provision very difficult.

Tom Angell, government relations director at Students for Sensible Drug Policy, responds sensibly:

“While it would be more appropriate to simply erase the penalty from the lawbooks altogether, we support the committee’s effort to make sure that students with drug convictions can get aid just like anyone else.”

SSDP makes it easy to contact your senator to support the change by visiting this page.

Linda Greenhouse asks what became of the "respect for precedent" that both Chief Justice Roberts and Justice Alito paid homage to during their confirmation hearings.

Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. assured their Senate questioners at their confirmation hearings that they, too, respected precedent. So why were they on the majority side of a 5-to-4 decision last week declaring that a 45-year-old doctrine excusing people whose “unique circumstances” prevented them from meeting court filing deadlines was now “illegitimate”? It was the second time the Roberts court had overturned a precedent, and the first in a decision with a divided vote. ...

Sometimes the court overrules cases without actually saying so. Some argue that this is what happened in April, when a 5-to-4 majority upheld the federal Partial-Birth Abortion Ban Act without making much effort to reconcile that ruling with a decision in 2000 that found a nearly identical Nebraska law unconstitutional.

All judges respect the precedents they like. Many judges are cautious about overruling precedents that have been widely accepted and implemented by lower courts. But precedents that a judge finds suspect, that aren't consistent with a shared (if not widespread) judicial philosophy to which the judge adheres, enjoy less respect, confirmation hearing promises notwithstanding.

What does this portend? Greenhouse takes a guess ...

"Lots of people say, 'I want a Democrat,' but when they see the particulars, they say, 'I don't want that Democrat,'" said Jeffrey Berry, a political science professor at Tufts University. "The thing that's amazing about the Democrats is that they could still snatch defeat out of the jaws of victory. The major Democrats are all now well to the left of the median voter."

Matt Yglesias writes about this piece by ABC News that basically argues what Prof. Jeffrey Berry says. Matt comments on the lack of imagination of the piece. I am struck by its inaccuracy. The argument presented was the same one we saw in the runup to the 2006 election from the Media -- the Democrats are moving to far to the Left. As then, the polls belied every statement made in that regard. And of course the election results proved it too.

I have never heard of Jeffrey Berry and I imagine most of you have not heard of him either. He was chosen to be quoted in the article because the reporters wanted to put their views in the mouths of some semi-authoritative voice. And Berry obliged. But Berry is absolutely wrong based on all the polling on EVERY ISSUE. Let's discuss the particulars on the flip.

Greg Sargent explains. Rudy said today:

"I thought it would work, but then after a month or two I realized the idea that I was possibly going to run for president would be inconsistent with that," he said . . .

Baloney:

Rudy's role with the ISG was announced in March of 2006. That means that Rudy didn't see a problem with being on the ISG at that time. But many months earlier than this, Rudy himself was openly telling reporters that he was a potential candidate for President.

From the Associated Press in October of 2005:

. . . "I will be considering it next year," Giuliani said during a visit to Denmark.

Rudy, as he is on most things, is just making stuff up. Will the Media call him on it? Is a haircut involved? No? Then no.

Media Matters notes that Politico virtually ignored the Rudy Bailed on the ISG story. Apparently the absence of a haircut made it "not news." And it appears that Mark Halperin will have to change his saying to "Politico rules our world," as Kevin Drum notes the paucity of coverage in the Media:

Remember that Newsday story from yesterday about Rudy Giuliani getting kicked off the Iraq Study Group because he couldn't find the time in his busy schedule to attend their meetings? You could be excused if you don't, since apparently no one in our press corps considered either the news itself or Giuliani's laughable explanation for his absences to be worth commenting on. . . . [I]s this seriously not considered news? A guy who's running for president based on his reputation as a hero of 9/11 was given a seat on the highest profile group ever created to investigate a way forward in Iraq, but he decided it wasn't worth his time? He blew off James Baker and Lee Hamilton so that he could give speeches in South Korea and attend fundraisers for Ralph Reed in Atlanta? And the consensus reaction is a big yawn?

It needs a haircut angle Kevin. Don't you know anything about journalism?

MSNBC reports that, as promised, President George Bush has just vetoed the bipartisan stem cell research bill.

Pushing back against the Democratic-led Congress, Bush plans to veto a bill Wednesday that would have eased restraints on federally funded embryonic stem cell research, White House spokesman Tony Fratto said. In his veto threat, the president accused Democrats of recycling an old measure that he already vetoed and argued that the bill would mean American taxpayers would — for the first time — be compelled to support the deliberate destruction of human embryos.

The bill passed with significant Republican support. Does Bush have anything to say about them? I am sure the Beltway Pundits will be decrying this Bush rejection of bipartisanship. Riiiight. I won't hold my breath.

Bob Geiger discovered that Fred Thompson writes a column at the ABC Radio web site. Bob spots this gem from the Washington lawyer-lobbyist turned Hollywood actor:

Harry Reid, though, has taken a different route. He made his statement about General Pace on a conference call with fringe elements of the blogosphere who think we're the bad guys. This is a place where even those who think the 9/11 attacks were an inside job find a home."

(Emphasis supplied.) As usual, Fast Freddie is fact-free. 3 of the callers were daily kos Contributing Editors. And at daily kos, in a policy I helped formulate in 2005, 9/11 conspiracy diaries are prohibited. It is a controversial policy in some parts of the Left blogs.

So sorry Frederick of Dollywood, but you can't apply your GOP/Hollywood game of changing the facts to suit your demagoguery. And you are fact-free yet again.

Army Specialist Alex Jimenez has been missing since May 12, when his unit in Iraq was attacked by insurgents. As if his wife doesn't have enough to worry about, she's left to wonder whether she'll be deported.

"I can't imagine a bigger injustice than that, to be deporting someone's wife who is fighting and possibly dying for our country," [her attorney, Matthew] Kolken told [WBZ-TV].

Yaderlin Jimenez came to the United States from the Dominican Republic. She entered the country illegally, but after they were married, Alex thought she might be eligible for a green card and legal residence status. His efforts on her behalf only alerted the authorities that she was here illegally, triggering deportation proceedings that, fortunately, were stayed after she learned of her husband's disappearance. Kolken hopes she'll be granted a hardship waiver.

Kevin Drum makes a great point about Michael Moore:

It's true that I wish Michael Moore were a wee bit more scrupulous with the facts in his films, but I sometimes wonder if he doesn't insert random distortions into his movies deliberately. . . . [T]he end result is the kind of publicity money can't buy, and it's the sweetest kind of publicity of all: the kind that's subsidized by his enemies, who helpfully boost ticket sales by furiously denouncing his films for weeks on end. . . . Which, of course, explains why he shot part of SiCKO in Cuba. Sweden or Canada would have worked just as well, but probably no other country in the world could have produced the kind of howling denunciations from the National Review set that Cuba has produced. . . .

That makes total sense.

Q poll for New York:

In a hypothetical all-New York presidential race, Sen. Hillary Clinton wins with 43 percent of voters statewide, followed by former New York City Mayor Rudolph Giuliani with 29 percent and New York City Mayor Michael Bloomberg with 16 percent, according to a Quinnipiac University poll released today.
In a head-to-head matchup, Sen. Clinton tops Giuliani 52 - 37 percent, the independent Quinnipiac University poll finds.

Can we stop the silliness now? These are three pols everybody in New York knows. Bloomie would get 16%. The idea of Bloomberg running for President is a non-starter.

I'll be honest. The Democratic Strategist has not been a must read for me in the past. But now it will be as my friend Ed Kilgore, formerly of New Donkey, is the new Managing Editor. And Ed starts out with a bang, with a article discussing John Judis and Ruy Texeira's new the Re-Emerging Democratic Majority. Ed writes:

It's the indies, and to some extent professionals, they suggest, who make the "emerging Democratic majority" a potentially unstable coalition rather than a mass movement. And their article ends on a cautionary note. While enactment of some popular, landmark domestic legislation (e.g., universal health insurance) could solidify the Democratic majority, the dynamics of the Democratic coalition, along with built-in resistance to change in Washington's governing institutions, could make that difficult or even impossible. And without such transformative, "realigning reforms," the Democratic majority may turn out to somewhat fragile, and beset by the kinds of intraparty tensions that tend to divide the Left from the Center. The 2008 election, they suggest, could provide a critical test of Democrats' ability to manage their coalition, particularly since presidential elections inherently make it harder to accomodate the sort of state and regional customization of campaigns that worked well for Democrats in 2006.

I'll write my thoughts on all this in a later post.