Obama Clemency Grants Pick Up Steam

Somewhat lost amidst the wall-to-wall media coverage of the Clinton and Trump campaigns, President Barack Obama commuted the sentences of 111 federal prisoners on August 30. This builds on what has quietly become one of Obama’s most significant end-of-term domestic policy initiatives. He has now commuted 673 sentences, more than the previous ten presidents combined. The August 30 grants, however, had special significance for me and a small group of recent Marquette Law School graduates.

Commutation (that is, a reduction in the severity of a criminal sentence) is a form of executive clemency. The Constitution expressly grants clemency powers, and presidents since George Washington have used these powers in a variety of different ways. In recent decades, though, there has been a certain whiff of disrepute surrounding clemency. Reinforcing the negative perceptions, President Bill Clinton’s pardon of financier Marc Rich and President George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby seemed to confirm that clemency was mostly used to benefit wealthy, powerful defendants.

The Obama Administration, however, envisioned a very different way to use clemency.   (more…)

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Insights Offered on Working in the White House and Judicial Nomination Gridlock

 

It was three years from the time Brett Kavanaugh was nominated by President George W. Bush to be a federal appeals court judge to the time when his nomination was approved in 2006. That certainly gave him a first-hand look at the difficulties of getting a federal judicial nominee approved by the U.S. Senate.

“It’s been a mess for decades,” Kavanaugh, who serves on the U.S. Court of Appeals for the District of Columbia Circuit, said Wednesday during an “On the Issues with Mike Gousha” program at Marquette Law School. Republicans have held up appointments by Democratic presidents. Democrats have help up appointments by Republican presidents.

Kavanaugh would not comment specifically on the current high-profile part of this recurring “mess,” in which President Barrack Obama’s nomination of Judge Merrick Garland to the Supreme Court has met a wall of Republican opposition in the Senate.

But Kavanaugh repeated a position he has held for years, one that was in line with the policy Bush advocated when he was president: “There really should be rules of the road agreed on by both parties ahead of time to fix the process. “ Kavanaugh said Bush, during his presidency, had suggested a policy in which nominations would get a vote in the Senate within 180 days. Kavanaugh supported that idea. (more…)

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Is the Senate Free to Ignore President Obama’s Choice of a Replacement for Justice Scalia?

[The following is a guest post from Professor J. Gordon Hylton, a former member of the Marquette Law School faculty.] Justice Scalia’s unexpected death this past weekend has raised the question of how his seat on the Supreme Court will be filled. Some Republicans have already asserted that it would be inappropriate for the president to even place someone’s name in nomination during an election year.  Others have more modestly pointed out that the Republicans in the Senate would be within their constitutional function to use their majority power to veto any potential justice that the president might put forth.  Democrats, in contrast, emphasize the president’s constitutional duty to fill the slot and reject the idea that the impending election out to somehow stay the process of replacing departed United States Supreme Court rules. What does the history of the Supreme Court tell us about this situation? As it turns out, in the Court’s more than 225 year history, sitting justices have died or retired/resigned from the Court during an election year (or the brief stretch of the president’s term in the following year) on twenty occasions.  In 14 of the 20 cases, a new justice was appointed and confirmed before the president’s current term ended.  (In 7 of the 20 cases, the sitting president was re-elected, but in none of these cases did the nomination go into the following term.) However, the story is a bit different when the sitting president’s political party does not control the United States Senate. Not surprisingly, in the 12 cases when the president’s party has been in control of the Senate, the open-vacancy has been filled 11 times.  The one exception came in 1968, when sitting Chief Justice Earl Warren announced in June that he planned to retire before the end of the year. Even though the Democrats held a 62-38 majority in the Senate in 1968, President Johnson’s nominee to replace Warren, Associate Justice Abe Fortas, soon ran into trouble as evidence of perceived financial irregularities and conflicts of interest during Fortas’ years on the Court surfaced. Ultimately, the Fortas nomination was withdrawn, and Warren remained on the Court until the following June, when newly elected President Richard Nixon nominated Warren Burger as the new Chief Justice. In the other 8 situations, in which the President’s political party did not control the Senate, which is the current situation, the vacant court position went unfilled 5 times. In fact, that was the result the first four times the scenario presented itself. In 1828, 1844, 1852, and 1860, presidents--John Quincy Adams, John Tyler, Millard Fillmore, and James Buchanan--whose parties did not control the Senate, failed in their efforts to appoint replacements for recently deceased justices. (Technically, John Tyler was a Whig, and the Whigs did have a slight majority in the Senate during his presidency, but Tyler’s extreme States Rights beliefs alienated a majority of his fellow Whigs. He was actually more successful in working with the Democrats in Congress. Tyler’s efforts to fulfill…

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