Florida Supreme Court Clarifies Scope of Non-Final Review!

First off, congrats to Judge Thomas for his nomination as a federal judge in the SD FL.

A great pick!

And here's Senator Leahy on the clogged federal judicial nomination process:

If we do not find a solution to both the vacancy crisis and the threat to judicial resources, it will be harder for Americans to obtain justice in our Federal courts.  Our courts are already overburdened, and the sequester will result in cuts that will force courts to hear fewer cases, which means that court proceedings will be delayed even longer.  This will be especially damaging in civil cases, where there are already over 40,000 cases that have been pending for more than three years.  Sequestration cuts could even result in the suspension of civil jury trials.  Even more alarming, is what is at stake in the criminal context.  If probation and pretrial services offices are downsized or closed, Federal courts and their staff will be unable to properly supervise thousands of persons under pretrial release and convicted felons released from Federal prisons.  It is critical, then, that we work together.

Gee, who in general benefits from delay?

(h/t Glenn Sugameli)

In other news, the Florida Supreme Court again seeks to clarify the scope of appellate court review of non-final orders, this time in a case involving a claim of immunity by Citizens Property Insurance:

With this backdrop, we address the use of extraordinary writs to review non-final orders not designated as appealable under rule 9.130(a)(3). We first decide the certified conflict issue involving the propriety of utilizing a petition for writ of prohibition to seek interlocutory review of a non-final order denying Citizens’ motion to dismiss. We next address whether a writ of certiorari is appropriately used under these circumstances. Finally, consistent with how this Court has proceeded when this type of issue is presented, we consider whether we should amend rule 9.130(a) to create a new exception to allow for review of a non-final order denying a motion to dismiss based on a claim of immunity asserted by a state-created entity.

Don't you love the textbook way Judge Pariente framed the issues?

Finally, we have a bunch of happy lawyers in South Florida.

(For now.)

DC Fiddles While the 11th Circuit Burns.

I know some of you (most of you?) braved the rain and were at Brett Barfield's spectacular FBA Federal Judicial Reception this evening at the Hyatt downtown.

(To those of you who wondered in from the the adjacent Cosmetic Surgery Convention, yes this is what South Florida judges and lawyers really look like.)

Ka-ching!

It was a great event, filled with much #humblebrag but also genuine camaraderie and good cheer -- if you missed it, it was truly your loss.  There is no better way to feel connected and part of a real community of active, involved, caring judges and lawyers than attending this event.

Judge Jordan of course was there, connecting and relating to the lawyers and judges around him.

Meanwhile, the interminable gridlock in DC that has caught up this once-in-a-lifetime bipartisan consensus nominee for the 11th Circuit drew special attention from Senator Leahy, as passed on by the always in-the-know Glenn Sugameli:

Senate Republicans continue to block even judicial nominations with home state support from Republican Senators.  Republican Senator Marco Rubio and Democratic Senator Bill Nelson of Florida both introduced  Judge Adalberto Jordan of Florida to the Judiciary Committee when we held his confirmation hearing last September for his nomination to fill a judicial emergency vacancy on the Eleventh Circuit, and both strongly support his nomination.

Judge Jordan is an experienced jurist who has served as a judge for the Southern District of Florida since 1999.  If confirmed, Judge Jordan will be the first Cuban-born judge to serve on the Eleventh Circuit, which covers Florida, Georgia and Alabama.  Born in Havana, Cuba, Judge Jordan immigrated to the United States at age six, going on to graduate summa cum laude from the University of Miami law school.  After law school, he clerked for Judge Thomas A. Clark on the Eleventh Circuit, the court to which he is now nomination, and for Justice Sandra Day O’Connor, a President Reagan appointee to the United States Supreme Court.  Judge Jordan has been a prosecutor in the Southern District of Florida, serving as Deputy Chief and then Chief of the Appellate Division.  Judge Jordan has been a professor, since 1990 teaching at his alma mater, the University of Miami School of Law, as well as the Florida International University College of Law.  It is no suprrise that the ABA’s Standing Committee on the Federal Judiciary unanimously rated Judge Jordan “well qualified” to serve on the Eleventh Circuit, the highest possible rating from its non-partisan peer review.  It is also no surprise that his nomination was reported unanimously by the Judiciary Committee nearly four months ago.  The surprise is that Senate Republicans continue to stall action on this nomination for no good reason.

Judge Jordan is the kind of consensus judicial nominee that should be welcomed as one of the many examples of President Obama reaching out to work with Republican and Democratic home state senators and the kind of superbly qualified nominee we should all encourage to serve on the distinguished bench of Federal appeals court judges.  In the past the Senate would have voted on his nomination within days or weeks of its being reported unanimously by the Judiciary Committee.  Yet Republicans refused to consent to a vote on Judge Jordan’s nomination before the end of the last session and it has been stalled on the Senate Calenadar for nearly four months.  When we finally do vote on Judge Jordan’s nomination I am certain he will be confirmed with broad bipartisan support, perhaps unanimously.  There is no good reason the Senate is not voting to confirm Judge Jordan today.

Is there any reason for Republicans to continue to hold up this confirmation?

Sug reports that finally, on Monday, February 13, 2012:

• the Senate will proceed to Executive Session to consider Calendar #437, the nomination of Adalberto Jose Jordan, of Florida, to be United States Circuit Judge for the 11^th Circuit with one hour of debate equally divided and controlled between Senators Leahy and Grassley or their designees .
• Upon the use or yielding back of time (at approximately 5:30pm), the Senate will vote on the motion to invoke cloture on the Jordan nomination

 Hallehujah!!

Judge Jordan One Step Closer to Confirmation!

Fly, Judge, fly (with bipartisan support)!

Senator Leahy Speaks Out on Behalf of Stalled SD FL Judicial Nominations

As David noted the other day, Chief Judge Moreno has started writing letters in hopes of getting Kathy Williams and Bob Scola confirmed as judges sometime this century.

And Glenn Sugameli, a DC wonk who has done great work on this issue, passed along this floor statement by Senator Leahy in which the Senator quotes Judge Moreno's letter and highlights the larger context in which very qualified nominees are being held up for no good reason:

Recently, Chief Judge Moreno of the Southern District of Florida wrote to the Senate leaders urging that they expedite action on two nominations to fill judicial emergency vacancies in that district. Both Kathleen Williams and Robert Scola are among the many judicial nominees who were reported unanimously by the Judiciary Committee, yet both are being delayed for no good reason.

Chief Judge Moreno writes:

 [T]he judicial shortage with three vacancies in our district is becoming acute. For this reason, I ask your assistance in expediting both confirmations. The Judiciary Committee has found the nominees qualified and the people of South Florida eagerly await their service. 

Both of these nominees have the support of their home State Senators— Senator NELSON, a Democrat, and Senator RUBIO, a Republican. The two Senators have set aside partisan actions, and the Senate Judiciary Committee has set aside partisan actions by voting for the nominees unanimously. Why should they be held up because of partisan actions on this floor?

 Good question -- anyone have an answer?

Appoint More Federal Judges (And Pay Them More Too)

As I mentioned the other day, judges are frequently clueless about how much money it takes to litigate a case. The issue often arises when they are asked to approve counsel fees, and fail to inquire of opposing counsel how much they spent to litigate the exact same case.

Further proof is demonstrated by these preposterous comments from the Supreme Court during oral argument on whether enhancements are appropriate in a statutory fee-shifting case:

“Seven hundred thousand dollars for a lawyer. Wow!” Justice Stephen Breyer said, referring to the amount one lawyer could make for a year’s work on the Georgia litigation. “How do we explain this to the average person?”

Breyer said, “Very high is enough” when it comes to lawyer fees. “You don’t need very, very, very, high.”

Judge Breyer is a smart man and did not just fall off the turnip truck. Yet he appears shocked -- shocked -- that you can burn through $700k in a year on a closely-contested piece of federal civil litigation.

Judges, take a look at your docket -- every one of your civil cases of any significance at all has lawyers spending more than that in a year. If you call Marty Steinberg in for a discovery hearing you have just cost his client $5k minimum before it's done. A summary judgment motion can easily run $50k or more (not including all the pre-motion discovery and Westlaw fees). Abbey Kaplan claims to review every document personally in his cases -- do you think this comes cheap? (btw I like the new website!)

What exactly do you think we're doing out here?

Now let's talk federal judges.

I don't want to get all Peter Fay about it, but when Tom Scott took his dogs and bolted from the bench way back when to earn a lot more money doing insurance defense, he started a trend. Just the other day, Judge Stephen Larson of the Central District of California left for private practice, and Chief Judge Collins explains why in this excellent editorial:

This court, which serves more people than any other federal trial court in the country, faces a crisis of retention, arising from stagnating judicial compensation and ever increasing caseloads. Since 1998, eight of our judges have resigned or retired. Five joined JAMS, a private alternative dispute resolution provider, where neutrals can earn the equivalent of our annual salary in a matter of months. Two became state judges, with higher salaries and better health benefits.

Judicial salaries haven't kept pace with inflation

A May 2003 report urged Congress and the president to provide for immediate pay relief, noting that during the previous three decades, federal judges' salaries declined in value, while the average American worker's salary increased by 17.5 percent. This erosion in judicial pay deprives judges of the prospect of salary stability during their tenure, while other federal employees receive cost-of-living increases to keep pace with inflation.

While all federal judges are affected, we have been particularly hard-hit, given the high cost of living in California and higher than average (and rapidly increasing) caseload. We led the nation in the number of mega-criminal cases filed in fiscal year 2008, with 25 such cases — including one with more than 70 indicted defendants. We expect this number to rise again in fiscal year 2009.

The Southern District of Florida is in a similar situation, with a heavy criminal docket, vacancies on the court, and situated in a place with a high cost of living. Let's face it -- judicial pay sucks.

Meanwhile in DC Congress has been conducting hearings on the Federal Judgeship Act. As Senator Leahy pointed out in a letter to the WSJ yesterday (corrected link thanks to Glenn Sugameli, staff attorney for Judging the Environment, who wrote two great letters on this), things are slightly different this year:

The Federal Judgeship Act incorporates the recommendations of the nonpartisan Judicial Conference, led by Chief Justice John Roberts. Just as I have sponsored bipartisan bills incorporating the Judicial Conference's recommendations during the past eight years, I have done so again this year. The difference this year is that no Senate Republican is cosponsoring the effort. They have all apparently had a change of heart now that we have a Democratic President.

The WSJ predictably calls Senator Leahy's efforts to get more federal judges on the bench a "court-packing scheme."

Just as predictably, President Obama is moving too slow and cautiously on appointing judges:

During his first nine months in office, Obama has won confirmation in the Democratic-controlled Senate for just three of his 23 nominations for federal judgeships, largely because Republicans have used anonymous holds and filibuster threats to slow the proceedings to a crawl.

But some Democrats attribute that GOP success partly to the administration's reluctance to fight, arguing that Obama's emphasis on easing partisan rancor over judgeships has backfired and only emboldened Senate Republicans.

Some Republicans contend that the White House has hurt itself by its slow pace in sending over nominations for Senate consideration. President George W. Bush sent 95 names to the Senate in the same period that Obama has forwarded 23.

This is ridiculous. The time is now, be the change, yada yada yada.

Once we have more judges and they are paid better, maybe we won't see shock at the Supreme Court over a seven hundred thousand dollar legal bill.