SHOCKER Federalist Society Report: Embattled FL Supreme Court Justices Are Principled!

I'm more of an ACS kind of guy, but I do have to give the Federalist Society props for their own integrity in knocking down this ludicrous campaign to remove Justices Quince, Lewis, and Pariente:

A Florida professor commissioned by the conservative Federalist Society to review controversial cases of the three Florida Supreme Court justices up for merit retention concluded Wednesday that some of the most loaded charges used by opponents against the justices are unfounded.  Download Federalist Society

“There does not appear to be a pattern of unprincipled decision-making by any of the justices of the Florida Supreme Court,’’ wrote Florida International University law professor Elizabeth Price Foley after analyzing nine controversial cases since 2000. “There are disagreements, true. But disagreements do not suggest that those with whom you disagree are unprincipled.”

Although the Federalist Society does not take a position in the merit retention races, Foley said in a conference call with reporters that her review found that the controversial rulings “are in fact supported by some prior precedent and they do involve acceptable methods of legal reasoning.”  Opponents who want to accuse them of judicial activism, she said, are “going to have a hard time making that label stick.’’

Oh don't be so sure, Professor -- since when have facts stopped the Koch brothers?

PS --  The endorsements keep rolling in:

John Bolton to Visit Miami and Declare War on Libya.

The Miami branch of the Federalist Society has such an interesting and eclectic group of speakers covering the entire political spectrum -- all the way from Gitmo commanders to Fox commentator Bernie Goldberg.

So it's no surprise they have invited famous mustache wearer, National Review cover boy, and likely VP pick John Bolton, who lately has -- surprise(!) advocated for total war on Afghanistan Iraq North Korea Iran Duchy of Grand Fenwick Libya, who is coming to Miami to talk about.....what else, military action somewhere?

I mean seriously, is there any other speed with this guy?

(Actually, he wasn't too keen on overthrowing Mubarek in Egypt).

So, to conclude, there should be lots of informative legal discussion and thus your firm should pay for you to attend.

Mario Diaz-Balart Loses Another Redistricting Legal Challenge.

In a series of rulings on Constitutional amendment ballot initiatives set for the November election related to redistricting, the Florida Supreme Court put the kibosh on the latest legal challenge to the FairDistricts initiative:

In another decision, the Supreme Court ruled to stop a suit intended to remove Amendments 5 and 6 from the ballot. A group of incumbent politicians tried to take a second bite of the apple by raising issues they could have raised earlier. The court’s decision soundly rejected the politicians’ challenge, thus reaffirming that the FairDistricts Amendments will be on the ballot this November. A YES vote on 5 & 6, will stop politicians from selecting their voters and put power back in the hands of the people.

Amendments 5 and 6 will:
•Prohibit politicians from designing districts to favor themselves or their parties;
•Require them to make the districts compact and community based; and
•Make it impossible for legislators to draw districts to diminish the ability of minority voters to elect representatives.

The local "incumbent politician" is Mario Diaz-Balart, and the Florida Supreme Court opinion is here.

Justice Polston, who coincidentally will be in Miami next week to speak at a Federalist Society dinner, concurred in part and dissented in part.

Where Are My Loyal Tipsters?

I'm really ticked off someone shared braless crusader Brittney Horstman's FDC tale of woe with Miami Herald reporter Jay Weaver instead of yours truly -- didn't any FACDL list-serve lawyer recognize it as perfect material for this blog?

Come on people!

Actually, the story is beyond stupid -- what is the point of these rules? They strike me as sexist and vague (no "clothing that is tight and sexually suggestive or revealing").

Has this restriction ever been enforced against a man?

Also, why subject any lawyers seeing clients to these rules? Aren't we officers of the court, like judges and CSOs? Have there been prior incidents that would justify making lawyers take off their bras when seeing their clients?

If so -- tell me more.

In other news, the Federalist Society will be meeting tomorrow at the Four Seasons, hosting former FEC commissioner Hans von Spakovsky.

I've been following Spakovsky's legal writings on NRO, which have been strictly doctrinaire, uninspired and exceedingly partisan (here he is recently bashing a career Justice Department appellate attorney for receiving a commendation even though she wound up losing an appeal).

But I had no idea of the extent of it before reading about his background on Slate.

Let's just say he seems completely fair and balanced.

In other news, Judge Donner apparently needs a better internet connection:

She took offense at DuPont attorneys, who claimed her access problems were not due to the depository itself but the quality of her Internet connection, the court’s computer firewall and anti-virus software.

Company attorney Bert Ocariz of Shook Hardy & Bacon in Miami said Donner would fare better if she tried from a different location.

Dude, I'm not sure that's the best way to handle that issue.

Did you also complain about her fax machine and tell her the courtroom A/C's not working so hot?

Awkward!

Jews For Judges!

Florida AG Bill McCollum today filed a suit in the ND FL seeking to have the new health care reform bill declared unconstitutional.

It's a hodgepodge of overheated rhetoric for the most part, though buried in there is a somewhat plausible 10th Amendment and Commerce Clause challenge.

As noted barrister Vincent Gambini once asked, "does this argument hold water"?

Writing for the conservative Federalist Society last year, former HHS officials Peter Urbanowicz and Dennis G. Smith said it might:

If Congress were to invoke its Commerce Clause authority to support legislation mandating individual health insurance coverage, such an action would have to contend with recent Supreme Court precedent limiting unfettered use of Commerce Clause authority to police individual behavior that does not constitute interstate commerce: United States v. Lopez,10 invalidating the application of the Gun Free School Zones Act of 1990 to individuals and United States v. Morrison,11 invalidating certain portions of the Violence Against Women Act. In the case of a mandate to purchase health insurance or face a tax or penalty, Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.

While most health care insurers and health care providers may engage in interstate commerce and may be regulated accordingly under the Commerce Clause, it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual who chooses not to undertake a commercial transaction. The decision not to engage in affirmative conduct is arguably distinguishable from cases in which Commerce Clause regulatory authority was recognized over intra-state activity: growing wheat (Wickard v. Filmore)12 or, more recently, growing marijuana (Gonzales v. Raich).13 Reliance on the Commerce Clause to justify the constitutionality of an individual mandate might be susceptible to an “as applied” challenge from individuals who (1) never access the health care system or (2) are able to pay for their health care without using insurance, because the government could not claim an impact on interstate commerce of providers and insurers as a result of uncompensated care.

An individual mandate also presents issues under the First Amendment’s Free Exercise Clause and the Fifth Amendment’s Taking Clause. Given the uncertainty with how an individual mandate would comport with religious beliefs regarding health care choices, the Senate Finance Committee policy outline suggests creating an exception to the health insurance mandate for “religious reasons.” It still leaves open, however, the question of whether the compelled purchase of health insurance constitutes the “taking” of private property under the Fifth Amendment. Given the novel nature of the individual health insurance mandate, a Fifth Amendment challenge can be expected. Requiring a citizen to devote a percent of his or her income for a purpose for which he or she otherwise might not choose based on individual circumstances could be considered an arbitrary and capricious “taking” no matter how many hardship exemptions the federal government might dispense.

On the other hand, Simon Lazarus, writing for the liberal American Constitution Society last year, said the Constitutional issues are seriously overblown:

Opponents' arguments to the contrary express philosophical objections to the concept of mandatory health insurance in principle, without regard to the practical issues the Supreme Court has always used to evaluate laws challenged as outside Congress' interstate commerce authority: the practical impact of the mandate on commerce or the public welfare or the welfare of affected individuals, or the rationality of Congress' judgments about its impact on statutory goals. No doubt, in some quarters, opponents' libertarian views are deeply felt. But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law. But their arguments appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justices across the Court's ideological spectrum.

Given that the individual mandate does not kick in until 2014, is there a ripeness problem as well?

Oh well, while we cogitate on all this it is time to fete the judges (again).

Put on your best schmooze-face and I'll see you tonight!

SFL Friday -- Why Life Is Worth Living

Hi folks, I am readying my winter windsurfing gear (a koozie for my dry Gin Gibsons, turtleneck wetsuit etc.) and generally getting prepared for the weekend -- I hope you are too.

My first order of business btw is to windsurf, get airborne and crash spectacularly through the oceanfront windows of the Eden Roc where all those prosecutors and ultra-stiff white-collar lawyers are having their concluding cocktail reception.

Once I have their attention, I plan to go all William S. Burroughs and do a dramatic nonlinear "cut up" reading of the entire federal RICO statute -- with amendments -- because seriously that's pretty much what these guys do for fun.

(Don't worry, I have something extra special saved for Bernie Goldberg(??) when he speaks at the Federalist Society dinner next week.)

In conclusion, give the kiss that keeps on giving, learn how to dress like a Mad Man, and as always, put your hands on something warm and snuggly.

Have a great weekend!

Ponder the Joys of Club Gitmo at the Four Seasons

Hey all you armchair warriors who think the untried, never-charged, indefinite detainees have it way too easy at Club Gitmo, come and join us as we show them how tough we really are:

Brigadier General Rafael O’Ferrall

Deputy Commanding General

Joint Task Force Guantanamo

Guantanamo Bay , Cuba

“ Guantanamo Today”

Tuesday, the Seventh of July

Two Thousand and Nine

from 6:00 - 8:00 PM

The Miami Ballroom at

The Four Seasons Tower

Sixth Floor

1441 Brickell Avenue

Miami , Florida

Admission Complimentary

Please R.S.V.P.

Rossy at Tew Cardenas, LLP

305-503-5547

rnd@tewlaw.com

Hors D’oeuvres

Cash Bar

BTW, I found yesterday's article in the NYT on the litigation over the Four Seasons to be pretty fascinating. Much of it relates to the requirements of maintaining the Four Seasons "brand" in a deteriorating economy:

At Four Seasons hotels, they spell out your children’s names in chocolates, on plates in their rooms. They put limes and Valencia oranges in the gym water coolers. They buy the best televisions, and they assemble combinations of sheets, mattresses and pillows comfy enough to provoke an unbidden endorsement on Oprah Winfrey’s show:

Oprah: Favorite thing to sleep in for you?

Julia Roberts: A Four Seasons bed.

Oprah: Four Seasons’ bed is the only bed better than my own!

See, it really is just like Gitmo!