AG Nominee Mukasey Once Ruled Sentencing Guidelines Unconstitutional

The Associated Press reports that in 1988, then-Judge Michael Mukasey issued a 15 page opinion declaring the U.S. Sentencing Guidelines unconstitutional. [via Sentencing Law and Policy.]

In his 15-page ruling, much of it written in a sardonic tone, Mukasey belittled the Justice Department's insistence that the guidelines were a function of the executive branch, while the U.S. Sentencing Commission simultaneously claimed them under the judicial branch.

"A survey of the results thus far calls to mind nothing so strongly as the band of blind men describing the elephant variously as a wall, a tree or a rope, depending on which part of the beast they touched," Mukasey wrote.


Mukasey's ruling focused largely on separation of government powers. He also disagreed with the Justice Department's defense that judges could be included in an executive agency without violating the Constitution, and quoted from Alexander Hamilton's Federalist Papers to drive home his point.

"There is ample room to quarrel with the DOJ's reading of history as it relates to the extra-judicial service of federal judges, but its arguments suffer from more than bad history," Mukasey wrote.

He seems to have come around since then:

Mukasey largely has been silent about the sentencing guidelines since the Supreme Court ruled that, when handing down sentences, judges must consider the guidelines but don't necessarily have to follow them. How strongly he will push the Justice Department's plans for mandatory prison time already has piqued the curiosity of lawyers and legal experts.

"He was one of the judges who tended to follow the guidelines," said Washington defense attorney Michael Horowitz, a member of the Sentencing Commission and a former Justice Department prosecutor who argued cases in Mukasey's courtroom. "As someone who believes in the rule of law, the guidelines were the law. And he was going to read the law as it was written."

So, will he go along with the Bush Administration's post-Booker plan to ask Congress to make all federal crimes result in a mandatory minimum sentence? Alberto Gonzales'remarks this June are here.

Where are the Dems on this issue? Here's what those running for President had to say about mandatory minimums and the crack/powder debate in July.

Update: More from Mukasey on how he'll be independent from the White House:

At a Senate Judiciary Committee meeting Thursday, chairman Patrick Leahy recounted asking Mukasey during a private meeting about White House meddling in criminal and civil cases.

"And he said, 'I'll tell you right now, if anybody calls any member of the Justice Department, if I'm attorney general they'll be given two numbers: It'll be the telephone number of the attorney general and the telephone number of the deputy attorney general. And they'll be told that if they want to talk to anybody, these are the only two people who can talk about this case. And we may well not talk about it,"' Leahy, D-Vt., quoted Mukasey as saying.

Mukasey continued by adding that if a Justice Department employees discusses cases "with somebody outside, whether from the White House or members of Congress or something else like that, they will be fired,"

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    You People Just Don't Get It, Do You? (none / 0) (#1)
    by scribe on Sun Sep 23, 2007 at 10:17:40 AM EST
    Last week, everyone was all oohs and aahs over Mukasey, because he ruled against the government in Padilla.

    Then, when the bloom kinda started coming off that stinker of a rose, y'all started looking around for another reason to like and further Mukasey.

    Then, in the middle of the week, everyone realized that Bush/Cheney's appointment of the odious AT&T and torture lawyer Peter Keisler to be the Acting AG was sort of a bad thing.  Emphasized by the simultaneity of putting Keisler in while Mukasey was making the rounds was the message - "confirm Mukasey quickly, else there will be more horrors out of and inside DoJ."

    So, now, we have a twenty-year old opinion, written by someone about a year on the bench at the time, dredged up to show that somehow, just somehow, Rudy Giuliani's campaign legal adviser, former assistant, father of his law partner and all-around best lawyerin' bud is just the ticket to be the AG.

    Let's look at this timeline.  Yes, Mukasey made a decision holding the Sentencing Guidelines unconstitutional, for a lot of good reasons.  And those reasons (and the decisions following them) were, not too much later, repudiated by the Supreme Court when it decided that not only were the Sentencing Guidelines and Sentencing Commission constitutionally acceptable, but the Guidelines were mandatory.  And that regime continued for over 15 years, until Booker and Blakely and Fanfan and all the rest came along, on the heels of Apprendi.

    Needless to say, as long as Breyer is on the Court, the Separation of Powers atrocity that is the Sentencing Commission will continue to be held constitutional, and the Guidelines will somehow retain force.

    Then Mukasey spent the next 15 or so years judging cases and dutifully, rigidly applying the very same Guidelines he had previously opined were unconstutional.

    So, he follows precedent and "the law".  Great!
    Problem is, what is now the precedent and what is now the law at DoJ?

    For example, before he left, Monica Goodling and Rove protege Brad Schlozman managed to finish rewriting the Election law enforcement procedures and policy book, to make perfectly acceptable (and even endorsed as DoJ policy) the same "scare the darker people and yield Republican wins" litigation tactics (bringing lawsuits and prosecutions about alleged election law violations immediately prior to elections) which had been decried (properly) as a scandalous intrusion of poltics into prosecutions and use of incumbency to warp elections.  Right now, what Schlozman did is the Rule of Law.

    Has anyone bothered to extract a promise from Mukasey to, um, rip out the pages Schlozman wrote, from the book of law?  I kinda doubt it.

    Has anyone even bothered to ask?  I kinda doubt it.

    Given the way the Democrats have been blundering around - in farm talk, like newly castrated cattle - I'd bet no one has even thought to ask.

    Going back to my discussion (in my diary, which you really should take the time to read), there were three reasons Mukasey ruled against the government in Padilla.  In reverse order of importance, these are:

    1.  Precedent required it.

    1.  He was offended that the government spirited Padilla out from under his jurisdiction.

    2.  He was protecting his own power as a judge.
    That was the most important part of his ruling in Padilla, but not for the reasons too many would be thinking.  It's not that he has any great appreciation for preserving the power of the judiciary.  It's that he was more interested in exhibiting that he will preserve and wield the power of whatever office he holds.  

    Now, we are expected to believe that given the unprecedented expansion of power in the AG recently bestowed by the new FISA (among other things) and the rampant power grabs of this Admin, as yet un-undone, a judge (or any other person) whose entire career has been marked by exerting power will not use those powers?  Will not do everything in his ability to preserve those powers?

    And a person who is extremely close to the leading candidate of the Rethug party will not exert (or fail to exert) those powers to benefit that candidate or harm his opponent?

    And that this person would be appointed by this president to be the chief law enforcement officer of the United States even though we're supposed to believe he might be at variance with the philosophy of this President?

    Protecting his own power as a judge was what his opinion finding the Guidelines unconstitutional was all about.  He recognized, rightly, that the Guidelines were a huge stroke against the independence of the judiciary and a huge power grab for the executive. So, he ruled consistently to preserve his own power.

    Leopards don't change their spots - and he will be entirely intellectually, morally and philosophically honest when he does everything possible to preserve (and expand) the power of the AG.

    Assuming these blundering steers in the Senate continue blundering about the way they have been, and vote to confirm him.