Wednesday, June 06, 2007

Libby's Bad Luck

Mootness doctrine works in mysterious ways. As I note in my FindLaw column today, Monday's Supreme Court dismissal on mootness grounds of Claiborne v. United States highlights the awkwardness of mootness doctrine itself. Here I'll note a bizarre connection to the Scooter Libby case.

Claiborne presented the question whether a federal district judge, in departing downwards from a Sentencing Guidelines range, may rely on factors that have already been considered by the Sentencing Commission, absent extraordinary circumstances. The district judge in Claiborne thought that the answer was yes, in light of the Supreme Court's conversion of the Guidelines from mandatory to advisory in United States v. Booker. The Eighth Circuit disagreed and the Supreme Court would have given a definitive answer, perhaps as early as Monday, had Claiborne not died last week, thus mooting the case.

Suppose the Supreme Court had agreed with the district judge. In that case, it might have written an opinion stating that a district judge can depart downward even without an extraordinariness finding. And if that were so, then Judge Walton could have given Libby a lighter-than-30-month sentence on the basis of Libby's long record of public service. Without such a ruling, Judge Walton likely felt bound to follow the approach of the Eighth Circuit in Claiborne: As recently as February, the DC Circuit cited the Eighth Circuit decision in Claiborne as reflecting the proper approach to post-Booker departures. Thus, Judge Walton was not permitted to depart downwards based on Libby's service because the Guidelines already take this factor into account, stating:
§5H1.11. Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works (Policy Statement)
Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted.
Had Claiborne lived out the Term, and had the Supreme Court reversed the Eighth Circuit, Libby would have been entitled to rely on the Supreme Court's decision on appeal or even on a motion for reconsideration. But, bad luck for Libby, Claiborne died last week, mooting his case, and thus leaving the DC Circuit's approach in place. Bad luck for Claiborne too, no doubt.