Wishing T. Christopher Kelly and Rosemary Scapicchio the Best!

It appears from the Supreme Court's Hearing List for the Session Beginning October 4, 2004 that Acting Solicitor General Paul D. Clement will argue both Booker and Fanfan; T. Christopher Kelly, of Madison, Wis., will argue for respondent Booker in No. 04–104; and Rosemary Scapicchio, Boston, Mass., will argue for respondent Fanfan in No. 04–105. There will be 2 hours of argument.

Professor Berman indicates at Sentencing Law & Policy that he finds it "a bit of news [that Acting Solicitor General Clement will be arguing both cases] because Deputy Solicitor General Michael Dreeben is reputed to be the 'point person' on these cases, and he argued on behalf of the United States as amici in Blakely." I think they are probably trying to avoid having the same attorney now standing before the Court telling them that the differences between the Washington State sentencing guidelines and the federal sentencing guidelines are all of a sudden of Constitutional significance. It should be interesting to see how much time the Court actually devotes to questions addressing the applicability of Blakely to the federal sentencing guidelines as compared to the more complex issue of severability.

I believe the respondents briefs are excellent, as are those of many of the amici filing in their support. Never having done it, I can only assume that arguing any case, let alone one of the importance of these consolidated ones, before the Supreme Court would give an attorney some butterflies, so we wish T. Chris Kelly and Rosemary Scapicchio the best of luck.

It is unfortunate that we will not be able to listen to the argument, and I only hope that a transcript does not take long to be posted somewhere.