An exclusive article by Judge John Wilson, (ret.)
Recently, the Second Circuit, which is the federal appellate court for New York, Connecticut and Vermont, ordered the resentencing of a man convicted of the attempted murder of an FBI Agent in 2015. Fareed Mumuni, who is reported to be an ISIS supporter, tried to stab the Agent during a search of his home. Mumuni had received a sentence of 17 years from District Judge Margo Brodie.
However, unlike the usual resentencing order, here the Second Circuit ordered the lower court to give Mumuni a higher sentence. Speaking for the majority, Justice Jose Cabranes stated that Judge Brodie “drastically discounted the seriousness of Mumuni’s offense conduct based on a sterilized and revisionist interpretation of the record.” This led to a “clearly erroneous assessment of the evidence…a mistake that resulted in a shockingly low sentence that, if upheld, would damage the administration of justice in our country.”
Reductions in sentences are far more common on appeal than increases, so much so that some legal scholars have questioned the constitutionality of increasing a sentence on appeal. To date, this is a minority opinion, and appellate courts have exercised the authority to increase or decrease a sentence at their discretion. But nonetheless, an increase of a sentence is unusual enough to draw some attention.
Justice Cabranes was appointed to the Second Circuit in 1994 by President Bill Clinton. However, since Donald Trump was elected President in 2016, five new justices have been appointed to the Second Circuit – Richard Sullivan, Joseph Bianco, Michael Park, William Nardini, and most recently, in November of 2019, Steven Menashi.
In fact, with the appointment of former White House counsel Menashi, the Second Circuit now has a majority of judges appointed by Republican Presidents.
Could this Republican majority be the reason why the Second Circuit now holds that a 17 year sentence is “shockingly low” for the attempted murder of an FBI Agent? The better question to ask is, what is the effect of the return of judges to the federal courts who support restrain over activism?
Clearly, the Trump Administration has made it a priority to appoint judges who are Constitutional conservatives to the bench. This strategy has been an overwhelming success – as of December, 1 out of 4 Circuit Court Judges in the United States are Trump appointees. AS the Washington Post notes, “Trump’s appointments have flipped three circuit courts to majority GOP-appointed judges…The president has also selected younger conservatives for these lifetime appointments, ensuring his impact is felt for many years.”
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(For a review of the Fifth Circuit that is entertaining for all the wrong reasons, and epitomizes a view that can best be described as “leftist tears,” see this article from the on-line magazine Slate here An example – “The 5th Circuit’s descent into lawlessness did not happen by accident…There are now 11 GOP nominees on the court and just five Democratic nominees. (There’s also one vacancy, because some Republican senators deem Trump’s choice for the seat insufficiently militant.)”)
Of all the Circuit Courts, the Ninth Circuit is the most watched in this context. Here, the President has nominated no less than 10 judges to sit in this Court, which covers Alaska, Arizona, California and Hawaii – Mark Bennett, Ryan Nelson, Eric Miller, Bridget Bade, Daniel Collins, Kenneth Lee, Daniel Bress, Danielle Hunsaker, Lawrence VanDyke and Patrick Bumatay. With these 10 new judges, more than any other Circuit court in the nation, conservative judges make up almost half the Ninth circuit bench.
The Ninth Circuit is famous for a series of activist rulings, including blocking the Trump Administration’s travel ban from terrorist supporting nations no less than three times. The Ninth Circuit also had the reputation of being the “most reversed” circuit in the nation, but this assessment is a bit of an exaggeration. According to FindLaw..com, “Based on the October 2017 term, the Ninth Circuit was often on the wrong side of the Supreme Court. The High Court reversed 15 of its cases — twice as many as from any other federal appeals court. But over time, the Ninth Circuit is barely ahead of the curve. Since 2007, the 9th has trailed three other circuits in reversal rates. About 75.5 percent of its cases were reversed during that time, but the Sixth Circuit was most-reversed with a 88.1 percent rate. The Eighth Circuit came in second with 76.3 percent, and the Eleventh Circuit was reversed 75.9 percent of the time.”
Nonetheless, given its history and reputation, the changes to the composition of the Ninth Circuit are historic. Among those being replaced are such judges as “the late Stephen Reinhardt, the ‘liberal lion’ who authored the opinion tossing California’s ban on same-sex marriage; and the late Harry Pregerson, arguably even more liberal than Reinhardt, who in his 1979 confirmation hearing told the Senate that ‘if I had to follow my conscience or the law, I would follow my conscience.’”
This change is the very heart of this so-called “revolution.” For years, the federal courts have been stacked with activist judges who have ignored the law in favor of the dictates of their own consciences and political leanings. Now, judges are being appointed who will follow the law, as written, and who will not impose their own views on the legislated will of the People.
If for no other reason, and even were Donald Trump not to be reelected this year, the impact of his Presidency will be with us for a very long time.
Photo: U.S. 2nd Cir. Courthouse (DOJ)