Judge McConnell's Take on Post-Booker Reasonableness:
If you're interested in sentencing law, and in particular appellate review of sentences in the federal system, you don't want to miss Judge Michael McConnell's powerful concurring opinion in United States v. Pruitt. It's basically a short law review essay critiquing the current state of sentencing law. While I'm normally a bit uneasy about law-review-articles-as-opinions, McConnell's opinion is tremendously thoughtful and definitely worth a read. (LvHB)
Armen (mail) (www):
I vaguely remember McConnell either giving a speech or writing an essay on the post-Booker state of sentencing. The punchline was that nothing about Booker makes sense because only RBG agreed with all of Booker.

Anyway, I nominate this as the money quote

The process reminds me of the "snipe hunts" of my boyhood years in the Scouts, where the older boys would take the younger ones out in the woods at night in search for creatures that turned out not to exist. Great fun, for Boy Scouts. So far, in the post-Booker forest, only one apparent snipe has been found, and it turned out, on remand, not to be a snipe after all.
6.5.2007 3:30am
Erasmus (mail):
McConnell wrote an excellent law review article on this topic not so long ago. I can't seem to find the cite, but if somebody who knows it off the top of their head could post the citation, I would greatly appreciate it.

Footnote five is particularly interesting -- McConnell hints that he thinks the sentencing commission is unconstitutional, but acknowledges the Supreme Court has already decided that it meets constitutional muster. I wonder if he would think differently if the sentencing commission didn't do such a poor job at what it does.

McConnell, in my mind, is the most brilliant conservative thinker in the federal judiciary today. His writings on religious liberty, for example, are incredibly insightful even if (in my mind) ultimately wrong. It's a shame he'll never be on the supreme court.
6.5.2007 4:28am
GK guest (mail):
McConnell's recent Booker piece is here:
6.5.2007 6:16am
I wouldn't rule him out for the SC; he's reported to have been highly considered (by Bush as well as many conservative groups), and he's relatively young yet. He also had some support from liberals in academia for his COA post.
6.5.2007 10:39am
Dilan Esper (mail) (www):
I think McConnell could probably be confirmed by a Republican Senate for a Republican President whose name isn't George W. Bush. He's actually quite intellectually honest and not a movement conservative hack at all, and he is a good judge.

On the other hand, if there's a vacancy in the next 1 1/2 years, expect it not to be filled until the next President takes office, unless Bush wants to nominate a pro-choice justice.
6.5.2007 6:58pm
Drew (mail):
Thislaw-review-article-as-opinion is well-taken and has a clear purpose. While I love the quote that Armen identifies, I think the point of his concurrence is: "It follows that district judges must not assume that the presumption of reasonableness accorded within-Guidelines sentences on appeal is equivalent to a presumption of unreasonableness for variances." Judge McConnell feels virtually powerless to overturn a "within-Guidelines" sentence. He is inviting district judges to allow the Court of Appeals to test the reasonableness of downward variances and is providing a district judge (and defense counsel) with the ammunition they need to legally justify a downward variance. It will be interesting to see if any of the district judges take him up on that invitation.
6.5.2007 7:32pm