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!!

A Personal Confession.

I have let the federal judiciary and the bar down and I regret those transgressions with all of my heart. I have not been true to my values and the behavior the court system deserves. I am not without faults and I am far short of perfect. I am dealing with my behavior and personal failings behind closed doors with my brethren. Those feelings should be shared by us alone.

Wait.

Hold on, you thought....?

No no, that's not me or even Tiger -- that's my fantasy of the Supreme Court finally confessing their sins on Iqbal!

A boy can dream, can't he?

Maybe I'm jazzed up because Senator Leahy has that regrettably vague pleading standard in his sights:

Today, in sometimes tense exchanges, those senators went head-to-head with Gregory Garre, the former solicitor general who argued and won the case almost exactly a year ago.

Garre, now chair of the appellate practice at Latham & Watkins, testified about the case at a Dec. 2 hearing before the Senate Judiciary Committee. He said there has not been enough research to conclude that the Iqbal decision — and the related 2007 decision in Bell Atlantic Corp. v. Twombly — are unfairly restricting plaintiffs.

“We need to know more. We need to know whether meritorious cases are being dismissed. We need to know if these are cases that would have been dismissed before Twombly and Iqbal,” Garre said.

Sen. Patrick Leahy (D-Vt.), the committee’s chairman, said some of that research is impossible because courts are throwing out lawsuits that do not meet the higher pleading standard. “If the cases are dismissed, how are we going to know whether they were meritorious?” Leahy asked.

Garre replied that researchers could at least study whether a case might have been dismissed under the previous standard.

Sure, that'll be easy.

I also like the way the Senators get in Garre's grill over his "study":

And a third witness, University of Pennsylvania law professor Stephen Burbank, criticized Garre for citing research that Burbank considers inadequate: a 156-page memorandum (PDF) from a law clerk to the Judicial Conference’s civil rules committee.

“It is a summary of cases — appellate decisions and a non-random sample of district court cases. It’s not a study. Mr. Garre is confused,” Burbank said.

Garre responded by quoting the chairman of the civil rules committee, U.S. District Judge Mark Kravitz of Connecticut, who told The National Law Journal in September that he thinks judges are “taking a fairly nuanced view of Iqbal.”

Sen. Al Franken (D-Minn.) rebuked Garre at the end of the hearing, accusing him of exaggeration. “I don’t like being told something’s a study when it’s a summary…. Testimony before Congress should be accurate when you talk about something,” Franken said. Garre did not respond.

To be fair, I think our SD FL judges have in fact been fairly nuanced in the way they have approached the Iqbal standard on motions to dismiss.

The point is, though, we shouldn't have to hope and pray for such fairness and nuance on an individual, judge-by-judge basis -- the standard should be straightforward and uniform in its application (and while we're at it, you might as well have it conform to the federal rules).