What’s Good for the Goose . . .

Earlier this week, a panel of the U.S. Court of Appeals for the Seventh Circuit issued its decision in In Re Sherwin-Williams Co. The court upheld Judge Lynn Adelman’s decision not to recuse himself from a case pending before him in the Eastern District of Wisconsin, Burton v. American Cyandamid, et al. 

Sherwin-Williams is currently before Adelman as a defendant in a personal injury action involving lead paint, heard in diversity jurisdiction. S-W believed “his impartiality might reasonably be questioned” (the relevant legal standard) because he had written an article defending the Wisconsin Supreme Court’s controversial lead paint decision in Thomas v. Mallett, 2005 WI 129.  (The article is Adelman & Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425 (2007)). In the article, Adelman defended the Court’s 04-05 term generally and praised Thomas particularly as a “positive development” which ensured that “the doors of the courthouse remain open.” Id. at 446. 

Based on this characterization, S-W sought his recusal in this case. 

Continue ReadingWhat’s Good for the Goose . . .

Sykes, Sotomayor, and Women Judges

I had the opportunity last week to attend Women Judges’ Night, an event that the Association for Women Lawyers presents annually (indeed, this year’s dinner was the thirtieth such). The Hon. Diane S. Sykes, L’84, of the United States Court of Appeals for the Seventh Circuit, delivered what was billed as a keynote but was also in the nature of after-dinner remarks. The speech was a very good example of either form, for reasons related to its warmth, its willingness to take on a substantive and even somewhat contentious topic, and the speaker’s self-awareness and humor.

Judge Sykes began with a “confess[ion]”:

[T]the idea of a “Women Judges Night” has always made me vaguely uneasy. I’m uncomfortable with the implications and consequences of gender-identity politics—or any identity politics, for that matter. When we celebrate Women Judges Night every year, what is it precisely that we’re celebrating? If we’re celebrating the appointment or election of women judges just because they are women, then I think we are making a mistake about the qualities necessary in a good judge, which of course are not gender-specific. If we’re celebrating the appointment and election of women judges because they subscribe to a gender-based brand of judging, then we are making an even bigger mistake about the nature of the judicial role. I don’t think we’re celebrating either of these things, but I do think it’s important for us to be careful not to diminish the contributions of women judges by emphasizing their gender as if it had something to do with their qualifications for judicial office or has substantive significance in their work.

She would conclude with her own assessment of what the event celebrates, along the way touching upon matters from Madison to Washington, D.C.—from her former court, a majority of whose justices were in attendance (viz., Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, Justice Annette K. Ziegler, and Justice Patience D. Roggensack, the last of whom introduced Judge Sykes), to the United States Supreme Court and, in particular, last year’s confirmation of Justice Sonia Sotomayor. 

Continue ReadingSykes, Sotomayor, and Women Judges

A Chemistry Lesson from the Seventh Circuit

seventh-circuit51Under the federal sentencing guidelines, sentences in drug-trafficking cases turn largely on weight — that is, how much of each type of drug was sold by the defendant — which can cause all sorts of problems in sentencing long-time dealers who were not considerate enough to keep meticulous records of their sales for the police.  Witness the case of crack dealer Joshua Hines, who admitted acquiring 1.531 kilograms of powder cocaine.  The district judge assumed that Hines cooked this powder into an equivalent weight of crack for resale, which resulted in a sentence of 168 months in prison.  Given much harsher treatment of crack than powder, the guidelines would not have resulted in nearly so long a sentence on the basis of the 1.531 kg of powder alone.  So, is it fair to assume that a crack dealer who possessed a certain weight of powder also possessed the same weight of crack?

No, said the Seventh Circuit in United States v. Hines (No. 08-3255).  Writing for the court, Judge Posner offered a little chemistry lesson, explaining that the process of cooking powder into crack removes hydrochloride from the drug.  Under ideal conditions, cooking results in an eleven-percent weight loss.  But, given the potential for careless waste during cooking, it is not clear that even the eleven-percent loss should be assumed.  The court concluded, “[If] the government wants the sentencing judge to infer the weight of the crack from the weight of the powder from which the crack was manufactured, it has to present evidence, concerning the cooking process, that would enable a conversion ratio to be estimated” (3).  (Judging by the mess on my kitchen counter most mornings, I am guessing that the “conversion ratio” when my six-year-old cooks oatmeal into hot cereal is about 2:1.  Fortunately, and notwithstanding its cholesterol-lowering benefits, the street value of oatmeal remains a lot less than cocaine.)

Continue ReadingA Chemistry Lesson from the Seventh Circuit