An Update on Federal Judicial Vacancies

The maintenance of an effective appointment process for federal judges is important because adequate staffing is critical to the function of the judiciary. Appointment delays and prolonged vacancies create a shortage of judges. A shortage of judges in turn contributes to case backlogs that make it extremely difficult for courts to administer justice in a timely manner. By many accounts, however, the appointment system does not work well. Because of the power of federal judges to decide important constitutional questions in particular, presidents and congressional leaders spar over the “qualifications” of judicial nominees, with the Senate frequently refusing to confirm even remarkably well-qualified candidates entirely because of perceived ideological differences.

The present is a particularly important time for filling judicial vacancies because the 2012 presidential election is only about a year away, and the appointment process slows down considerably during election season. So, how are the President and the Senate doing?

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Seventh Circuit Clarifies Sentencing of Wholesale Drug Traffickers, Encourages Dose-Based Approach

Wholesalers often sell drugs in relatively pure form, with the knowledge that retailers will dilute the drugs before reselling them on the street. Indeed, some powerful drugs, like the painkiller fentanyl, must be substantially diluted before they can be safely consumed. For that reason, wholesalers may end up selling much smaller quantities than retailers, at least as measured simply by weight. This presents a dilemma for sentencing, especially in the federal system, where weight drives sentences: should a wholesaler’s sentence be determined by the weight he sold, or by the weight of the diluted form of his product sold on the street?

The question has particular importance in fentanyl cases, as illustrated by the Seventh Circuit’s recent decision in United States v. Alvarado-Tizoc (No. 10-1613). In sentencing the wholesaler-defendants, the district court chose to attribute to them the full retail quantities, which were 11 to 16 times greater than the wholesale quantities.

This was improper, the Seventh Circuit held.  

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Accommodation of Prisoners With Idiosyncratic Religious Beliefs

Under O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), prison officials may restrict inmates’ religious practices, but such restrictions are constitutionally limited to those that reasonably relate to legitimate penological objectives. The Religious Land Use and Institutionalized Persons Act offers additional, statutory protections. But talk of a religious practice normally conjures up the image of an organized religious group acting pursuant to shared beliefs. What are we to make of an inmate who seeks an accommodation based on an indiosyncratic “religious” belief that is not actually espoused by his or her sect? Must an inmate’s belief be officially supported by an organized religious group in order to receive legal protection?

Yes and no, the Seventh Circuit answered last week in Vinning-El v. Evans (No. 10-1681). 

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