He sounds so judicial. He talks about neutrality, raising plain vanilla issues about deference to the expertise of administrative agencies. It is boring, hardly likely to engender indignation. He says his decisions are required by the law — not affected by his own background. He is Judge Neil Gorsuch and he may soon be on the Supreme Court. Don’t be fooled. His approach is not neutral, not required by the law, and far out of the mainstream. Quite apart from social issues like abortion or gay rights, his approach could gut health and safety and antidiscrimination laws. Continue reading »
That Attorney General Jeff Sessions made a false statement under oath before a congressional committee is clear. He said, “I did not have communications with the Russians,” when in fact he had met twice with Russian Ambassador Sergey Kislyak. The only question is what the consequences should be. Continue reading »
The Globe reported Sunday that Boston Mayor Martin J. Walsh wouldn’t say whether he had been a grand jury witness in a federal investigation into the tactics of Boston Building Trades unions. Since then, many have chided him for not being more forthright. But that misses a critical point: Grand jury proceedings are supposed to be secret. Government agents are bound by strict confidentiality rules. They may not disclose who has been called, when they testified, or what the subject was; they are barred from releasing information about wiretaps or other evidence they have assembled. While witnesses may speak about their testimony, they do receive a letter from the government with their subpoena that strongly urges them not to do so to protect the integrity of the grand jury investigative process. And that “suggestion” is particularly important in this probe and one that Walsh was right to heed. Continue reading »
On Saturday, February 13, Supreme Court Associate Justice Antonin Scalia passed away. CLBB Faculty Member Judge Nancy Gertner (ret.) reflects on his legacy.
By Nancy Gertner | The Boston Globe | February 14, 2016
I did not know Justice Antonin Scalia. Following the announcement of his death, I could not help but be struck by the accounts of his warmth, his friendships (notably with Justice Ruth Bader Ginsberg, with whom he regularly disagreed on the Supreme Court), his deep religious commitment, his infectious sense of humor.
I knew him through his opinions, books, and speeches. Even though I disagreed with him much of the time, one thing is clear: His legal positions could not be ignored — not by lawyers, scholars, judges, nor the public. I had to take them seriously in my own judicial decisions and in my writing. And the need to deal with his arguments shifted the debate, even the outcomes. Continue reading »
Over a 17-year judicial career, I sent hundreds of defendants to jail — and about 80 percent of them received a sentence that was disproportionate, unfair, and discriminatory. Mass incarceration was not an abstraction to me. Sadly, I was part of it.
Last weekend’s release of 6,000 prisoners from federal prison is an encouraging start to reform, but it’s only a start.
I was a judge during the most punitive period of US history — the ’90s — when we imprisoned more than any other country, even the most autocratic. I did what I could to mitigate the impact of the laws I had to apply. There were 10-, 15-, and 20-year mandatory sentences for drugs, which made no sense under any rational social policy. There were mandatory-sentencing guidelines, which often led to absurd results. When I made a small downward adjustment, explaining what I did in a written opinion, I risked reversal by an appellate court that saw only sentencing calculations, not people. Continue reading »