Who should replace Justice John Paul Stevens?

I've just written up (for Slate) my pick for who should replace Justice John Paul Stevens...and the winner is...

Jeffrey Fisher

Here's the piece...

In the spirit of an off-beat list, my vote goes to 40-year-old Jeffrey Fisher, co-director of Stanford Law School's Supreme Court litigation clinic. He has the temperament, track record, consensus-building skills, and life expectancy to make him a formidable nominee. Wildly accomplished for his years, Fisher is already considered one of the most influential lawyers in the country. Charmingly, he also served as a clerk for Justice Stevens. As a litigator, Fisher has compiled an astonishing string of high court victories, in part because of his impressive ability to persuade Justice Scalia to side with criminal defendants. That skill alone would make him a formidable presence on the court. Moreover, having never been a judge, (before joining the Stanford faculty, Fisher worked at the well-regarded law firm of Davis-Wright Tremaine), his paper trail is mostly academic. The big strike against him is age. Then again, in 1811, James Madison swore in Associate Justice Joseph Story. His age at the time: 32.


Judge Gleeson tells it like it is...

Thanks to my old colleague Frank for passing this to me:

Some Excerpts from United States v. Vasquez, No. 09-CR-259 (JG), 2010 WL 1257359 (E.D.N.Y. March 30, 2010)

When people think about miscarriages of justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison. As disturbing as those case are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants. This makes them easier to overlook. But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 minutes. This case is a good example.

When the case was first called for sentencing in December, I pointed out the obvious: the five-year mandatory sentence in this case would be unjust. The prosecutor agreed, and welcomed my direction that she go back to the United States Attorney with a request from the Court that he withdraw the aspect of the charge that required the imposition of the five-year minimum. She asked for a couple of months to make the case that the sentence enhancement should be abandoned.

On March 5, 2010, the prosecutor appeared again, shadowed by a supervisor. She reported that the United States Attorney would not relent. She offered two reasons. The first was that I might have failed to focus on the fact that Vasquez had "received a bump down," meaning he was allowed to plead to the five-year mandatory minimum rather than to the ten-year mandatory minimum that he, his brother, and three other co-defendants were originally charged with. I think this means that Vasquez should be grateful the government did not insist on a ten-year minimum sentence based on additional quantities of cocaine it concedes he knew nothing about and could not be held responsible for under the guidelines, presumably on the theory that other members of the same conspiracy dealt those quantities. I suppose there is some consolation in the fact that the government did not pursue that absurd course, which would have produced an even more egregious injustice if Vasquez had been convicted. But that hardly explains, let alone justifies, the government's insistence on the injustice at hand
I recognize that the United States Attorney is not required to explain to judges the reasons for decisions like this one, and for that reason I did not ask for them. But the ones that were volunteered do not withstand the slightest scrutiny.

As a result of the decision to insist on the five-year mandatory minimum, there was no judging going on at Vasquez's sentencing. Though in theory I could have considered a sentence of greater than 60 months, even the prosecutor recognized how ludicrous that would be, and asked for a 60-month sentence. But the prosecutor's refusal to permit consideration of a lesser sentence ended the matter, rendering irrelevant all the other factors that should have been considered to arrive at a just sentence.

The defendant's difficult childhood and lifelong struggle with mental illness were out of bounds, as were the circumstances giving rise to his minor role in his brother's drug business (i.e., it was to support an addiction, not to become a narcotics entrepreneur with a proprietary stake in the drugs), the fact that he tried to cooperate but was not involved enough in the drug trade to be of assistance, the effect of his incarceration on his three-year-old daughter and the eight-year-old child of Caraballo he is raising as his own, the fact that he has been a good father to them for nearly five years, the fact that his prior convictions all arose out of his ex-wife's refusal to permit him to see their three children.

Sentencing is not a science, and I don't pretend to be better than anyone else at assimilating these and the numerous other factors, both aggravating and mitigating, that legitimately bear on an appropriate sentence. But I try my best to do just that, and by doing so to do justice for the individual before me and for our community. In this case, those efforts would have resulted in a prison term of 24 months, followed by a five-year period of supervision with conditions including both other forms of punishment (home detention and community service) and efforts to assist Vasquez with the mental health, substance abuse, and anger management problems that have plagued him, in some respects for his entire life. If he had failed to avail himself of those efforts, or if, for example, he intentionally had contact with Melendez without the prior authorization of his supervising probation officer, he would have gone back to jail on this case.

The mandatory minimum sentence in this case supplanted any effort to do justice, leaving in its place the heavy wooden club that was explicitly meant only for mid-level managers of drug operations. The absence of fit between the crude method of punishment and the particular set of circumstances before me was conspicuous; when I imposed sentence on the weak and sobbing Vasquez on March 5, everyone present, including the prosecutor, could feel the injustice.

In sum, though I am obligated by law to provide a statement of "reasons" for each sentence I impose, in this case there was but one: I was forced by a law that should not have been invoked to impose a five-year prison term.