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WASHINGTON — U.S. Supreme Court Justice Stephen Breyer, author of the key opinion in last week’s sentencing guidelines decision, consulted a legal ethics expert last summer before deciding that he could rule on the issue. Breyer took the unusual step of seeking advice from New York University School of Law Vice Dean Stephen Gillers in light of Breyer’s involvement in creating the federal guideline system, first as a lawyer for the Senate Judiciary Committee in the late 1970s and then as a member of the Sentencing Commission from 1985 to 1989. Some legal experts argued — still do — Breyer had too much of a personal stake to participate in a case that would decide the constitutionality of the guidelines. Breyer’s 5-4 opinion in United States v. Booker and United States v. Fanfan preserved the guidelines — at least in advisory form — and concluded that “Congress would have preferred our remedy” over other possible outcomes. “He was deciding on the life or death of his own brainchild,” says Hofstra University law professor Monroe Freedman, a leading critic of Breyer’s participation. “And what he wrote vindicated himself. When you are sitting in judgment of your own vindication, I think reasonable people might question your impartiality.” But Gillers, in a letter dated July 2, told Breyer that his past involvement with the guidelines was not a bar to his participation in the then-impending litigation over whether the court’s ruling in Blakely v. Washington, 124 S.Ct. 2531, a state sentencing case, would have the effect of invalidating the federal guidelines. Because Breyer is no longer on the sentencing commission, Gillers wrote, “There is no longer any reasonable basis to question your impartiality on the issue of the validity of the guidelines. Nor is there any other basis to question your authority to sit in such a case by virtue of your prior service.” Gillers made the letter available to Recorder affiliate Legal Times with the permission of Breyer, who declined to discuss the issue last week. In an interview, Gillers says Breyer called him not long after Blakely was issued — and before the appeals in Booker and Fanfan were even filed with the court — to ask his opinion on whether he should recuse. “He wanted to clarify his role,” says Gillers, who added he has been asked before to advise Breyer and other federal and state judges on an informal and unpaid basis. Gillers says he weighed not only Breyer’s official roles in the Senate and the Sentencing Commission, but more subjective factors, including Breyer’s special zeal for the guidelines. “I assumed that he was an advocate for the guidelines and not merely a member of the commission,” says Gillers. But in the end, Gillers says he focused on the fact that in those prior roles Breyer “never spoke to the issue before the court” — namely whether the sentencing system should be struck down on Sixth Amendment grounds because it calls on judges to increase sentences based on facts not decided by a jury. The reason for that narrow focus, Gillers says, is that any broader rule would make it difficult for noted advocates to become judges. Justice Ruth Bader Ginsburg was a zealous advocate for women’s rights before joining the court, Gillers says, but should still be able to rule on cases in that area. He also notes that Justice Anthony Kennedy has spoken out generally against lengthy prison terms and mandatory minimum sentences in recent years, but he still participated in the sentencing case. But to those who think Breyer should not have participated, last week’s ruling only bolstered their view. Says Duke University law professor Erwin Chemerinsky: “Justice Breyer turns out to be the swing vote, and the tenor of his opinion is very much ‘how can we save the guidelines.’” Not all judicial ethics experts agree. “Judges have all kinds of experiences before they join the bench,” says Jeffrey Shaman, law professor at DePaul University. “If we applied the rule strictly, we would be disqualifying a lot of judges.” “I think it was quite proper” for Breyer to participate, says University of Pennsylvania professor Geoffrey Hazard. Breyer’s past role in devising “rules of general application” does not require recusal, he says. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C.

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