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07-18-2005 10:32 PM |
Edith Brown Clement, Fifth Circuit
Judge Clement has joined troubling dissents by the full Fifth Circuit. In one, Judge Clement maintained that the scope of an important federal criminal law, the Hobbs Act, should be severely limited on ?federalism? grounds.
United States v. McFarland, 311 F.3d 376 (5th Cir. 2002) (en banc), cert. denied, 123 S. Ct. 1749 (2003): constitutionality and scope of the Hobbs Act
The defendant in this criminal case had been convicted under the Hobbs Act for the armed robbery of four different retail convenience stores. The Hobbs Act makes it a federal crime for someone ?in any way or degree? to obstruct, delay, or affect ?commerce or the movement of any article or commodity in commerce, by robbery or extortion . . . .? 18 U.S.C. § 1951. The Act is important in authorizing the federal government to prosecute crimes that affect interstate commerce. On appeal in this case, the defendant argued that these were local robberies and that application of the Hobbs Act was unconstitutional. A three-judge panel of the Fifth Circuit affirmed the defendant?s conviction, following existing Fifth Circuit precedent under which the Hobbs Act is considered applicable to conduct that, in the aggregate, can reasonably be thought to substantially affect interstate commerce. One of the judges specially concurred and urged en banc reconsideration of the case. United States v. McFarland, 264 F.3d 557 (5th Cir. 2001).
Thereafter, the Fifth Circuit, ?by reason of an equally divided en banc court,? 8-8, affirmed the defendant?s conviction in a per curiam (unsigned) ruling. 311 F.3d at 377. Judge Clement was one of the eight judges who dissented from that affirmance and who would have reversed the defendant?s conviction. Clement joined two different dissents. The first was a dissent written by Judge Garwood, joined by all of the dissenters, in which the dissenters opined that the ?aggregation? principle should not be employed under the Hobbs Act, and that doing so brought ?within the scope of the Commerce Clause the proscription of local violent (and other) crimes not constituting the regulation of commercial activity . . .? Id. at 409. In this dissent, the eight judges expressly acknowledged that the manner in which they would interpret the Supreme Court?s Commerce Clause precedent for purposes of the Hobbs Act was inconsistent with the holdings of several other circuits. Id. at 394-95. In other words, Judge Clement voted to significantly limit the reach of the Hobbs Act and the authority of Congress under the Commerce Clause. In doing so, she would have overturned established Fifth Circuit precedent and ruled in a manner inconsistent with the law in several other circuits.
Clement, however, did not stop there. Along with three other judges, she also joined a dissent written by Judge Edith Jones that excoriated the eight judges who had voted to affirm the defendant?s conviction for not writing an opinion. Clement and the four other dissenters accused the eight judges of ?withdraw[ing] from the field of reasoned dispute? and ?default[ing] their duties of public explication, accountability and transparency.? Id. at 416, 417. Then, stating that, ?[b]ecause our colleagues are unwilling to speak for themselves,? these five dissenters went on to ?attempt to paraphrase the most significant arguments for [the eight judges?] position,? Id. at 421, and proceeded literally to put words in the other judges? mouths, setting up arguments for those judges and then knocking them down. (E.g., ?[t]hose who affirm concede that,? ?some of our silent colleagues would agree that,? etc. Id. at 421 422.)
This extraordinary dissent prompted a sharp rebuke from two of the judges who had voted to affirm the defendant?s conviction. Those judges wrote specifically to state that it was ?a deep mystery to us why five judges thought it helpful or appropriate to take eight fellow judges to task for failing to explain why they decline to change the established law of this circuit and create a circuit split. We of course disclaim their attempt to attribute views to us.? Id. at 377.
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