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.)

This Seems Like a Good Idea.

Especially with Magistrate Judge Rosenbaum testifying live right now before the Senate Judiciary Committee:

On March 14 and 15, call your senators toll free at 1-866-338-5720*and urge them to give President Obama’s judicial nominees an up-or-down vote. Senate Republicans, in their unprecedented obstruction, are filibustering 17 of President Obama’s district court nominees to the federal bench. A few facts to highlight:

• At this point in the Bush administration, the average district court nominee waited 22 days for confirmation. The average wait time for President Obama’s district court nominees is 93 days.
• At this point in the Bush administration, the Senate had confirmed 140 district court nominees. Only 105 of President Obama’s district court nominees have been confirmed.
• On average, each of the 17 filibustered nominees has been waiting more than 210 days since nomination. The vast majority of these nominees were approved either unanimously in the Senate Judiciary Committee, or with only Sen. Mike Lee (R-Utah) opposing.

The judicial vacancy crisis is grinding the federal judiciary to a halt. Half of all Americans – over 160 million of us – live in judicial districts or circuits that have a vacancy that would be filled today if the Republican obstruction of judicial nominations would end. And eight of these 17 filibustered nominees represent districts in which there is a judicial emergency.

There is precedence for the Senate to act. On November 2, 2002, Senate Democrats confirmed 17 of President Bush’s district court nominations – plus a circuit court nomination – all by voice vote.

 Is there really any good reason to oppose this?

So You Want to Be a Federal Judge?

Now is the time:

Pursuant to the instructions set forth in the attached letter from Senator Bill Nelson and Senator Marco Rubio, dated February 16, 2012, the Florida Federal Judicial Nominating Commission is now accepting applications for the following position:

• U.S. District Judge, Southern District of Florida

This vacancy was created by the Senate's recent confirmation of U.S. District Judge Adalberto Jordan to the U.S. Court of Appeals for the Eleventh Circuit.

The revised Rules of Procedure for the Judicial Nominating Commission, dated April 11, 2011, application forms with incorporated instructions, and the names and addresses of the members of the Commission, dated February 14, 2012 are available at the following websites: 1) The Florida Bar (www.floridabar.org), 2) District Court for the Northern District of Florida
(www.flnd.uscourts.gov), 3) District Court for the Middle District of Florida (www.flmd.uscourts.gov), and 4) U.S. District Court for the Southern District of Florida (www.flsd.uscourts.gov). In addition, these materials may also be obtained from the Commission's Statewide Chair John M. Fitzgibbons, The Law Offices of John M. Fitzgibbons, 707 North Franklin Street, Suite 700, Tampa, FL 33602, Telephone: (813) 221-8800.

Completed applications must be received by the Commission's Statewide Chair and each Commission member in the manner specified by the Rules of Procedure by 5 p.m., Monday, March 26, 2012. Applicants who are selected by the Commission for personal interviews will be interviewed on Friday, April 27, 2012, at the Judge's Conference Room, 14th Floor, Wilkie D. Ferguson, Jr. U.S. Courthouse, 400 North Miami Avenue, Miami, Florida. The names of the applicants who are selected for personal interviews with the Commission, as well as the interview times, will be published on each website on or before April 18, 2012.

In other news,  this guy is the reason why everyone has to show up and support the retention of Justices Quince, Lewis, and Pariente at the fundraiser next week:

The retention referendum deciding whether Justices Fred Lewis, Barbara Pariente and Peggy Quince are to keep their jobs for the next six years — or whether Gov. Rick Scott gets to replace them —appears likely to become the most hotly contested judicial elections in more than 20 years.
No justice or District Court of Appeals judge has ever been voted off the bench, since Florida switched from competitive elections to the appoint-and-retain model in 1976, but none has faced the kind of organized effort being mounted by a Central Florida group.

"I wouldn't want a judge thrown off the bench for one bad ruling," said Jesse Phillips, a Winter Park computer programmer who heads Restore Justice 2012. "But what we've seen on the Florida Supreme Court is a pattern of judicial activism."

Phillips cited court rulings removing the Legislature-sponsored Health Care Freedom Act from the ballot in 2010 — a corrected version is back on this year's ballot — and a 2000 ruling that struck a death-penalty constitutional amendment after voters had approved it.

Phillips said his only previous political experience was an unsuccessful 2010 effort to deny Justices Jorge Labarga and James E.C. Perry new six-year terms. Both men survived, but by about 6 percent less than Justices Charles Canady and Ricky Polston, who were not challenged for retention.
"It was purely a grass-roots campaign in just a few weeks, and we were able to move the results by six or eight points," said Phillips. "What we're running is a voter-education campaign. We're not telling people to vote yes or no, but laying out the record of the judges."

Let's hope this doesn't become a trend.

Finally, Paul Calli continues to happen.

Happy Friday!

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!!

Nothing Happened Today.

Sorry, just not a lot happening worth reporting on today.

Here's an interesting AP article on Obama's record on appellate court appointees.

Turns out they are mostly old and noncontroversial:

Many nominees of Presidents Ronald Reagan and George W. Bush were in their early 40s, some even in their 30s, and with reputations as bold conservatives. By contrast, Obama has frustrated some liberal interest groups mainly by favoring older nominees over younger ones who might be the Democratic equivalents of some of the Reagan and Bush picks. Obama's two youngest appeals court nominees, Goodwin Liu and Caitlin Halligan, were stymied by Republican filibusters in the Senate.

The average age of Obama-nominated appeals court judges is more than 55 years old, higher than any president's going back to Jimmy Carter, according to the liberal interest group Alliance for Justice. The age of these judges matters in an era when presidents regularly look to the circuit appeals courts as the pool for Supreme Court candidates. Younger judges have a chance to develop a record that presidents can examine, yet still be young enough to be considered for the high court.

So by the time an Obama-appointed appellate judge is ready for the Supreme Court, they'll be at the mandatory retirement age for Florida state court judges.

Makes sense, right?

Happy Monday!

Let's see, I hope everyone is getting ready for the holidays and things are starting to slow down until the New Year.

A few items that caught my eye this morning:

1.  Spencer is lighting a giant Menorah (caution -- video is very hamish).

2.  Judge Jordan's nomination stalled at year end. 

Here's a portion of Senator Leahy's powerful 12/17/11 statement on this gridlock:

Our courts need qualified Federal judges, not vacancies, if they are to reduce the excessive wait times that burden litigants seeking their day in court. It is unacceptable for hardworking Americans who are seeking their day in court to suffer unnecessary delays.  When an injured plaintiff sues to help cover the cost of his or her medical expenses, that plaintiff should not have to wait for three years before a judge hears the case.  When two small business owners disagree over a contract, they should not have to wait years for a court to resolve their dispute. 

With one in ten Federal judgeships currently vacant, the Senate should have come together to address the serious judicial vacancies crisis on Federal courts around the country.  Bill Robinson, the president of the American Bar Association, warned recently in a letter to Senate leaders that excessive vacancies and high caseloads “deprive… our federal courts of the capacity to deliver timely justice in civil matters and has real consequences for the financial well-being of businesses and for individual litigants whose lives are put on hold pending resolution of their disputes.”  Justice Scalia, Justice Kennedy and Chief Justice Roberts have also warned of the serious problems created by persistent judicial vacancies.  This is an issue affecting hardworking Americans who are denied justice when their cases are delayed by overburdened courts.

If caseloads were really a concern of Republican Senators, as they contended when they filibustered the nomination last week of Caitlin Halligan to the D.C. Circuit, they would not have blocked us from voting to confirm consensus nominees to fill judicial emergency vacancies.  They would have consented to consider the nomination of Judge Adalberto Jordan of Florida which was reported unanimously on October to fill a judicial emergency vacancy on the Eleventh Circuit.  He is a well-respected Federal judge and his nomination is strongly supported by Florida’s Republican Senator, Senator Rubio.  Yet, despite the judicial emergency Republicans continue to delay consideration of that nomination.

 3.  Newt wants US Marshals to round up "activist" federal judges:

The former House speaker Sunday showed no sign of letting up on his assault on such judges. During an appearance on CBS’s “Face the Nation,” Gingrich suggested the president could send federal law enforcement authorities to arrest judges who make controversial rulings in order to compel them to justify their decisions before congressional hearings.

When host Bob Schieffer asked how he would force federal judges to comply with congressional subpoenas, Gingrich said he would send the U.S. Capitol Police or U.S. Marshals to arrest the judges and force them to testify.

How could this possibly go wrong?

Judge Jordan One Step Closer to Confirmation!

Fly, Judge, fly (with bipartisan support)!

Herald Writes Interesting Editorial!

Not only that, but they actually express a firm opinion:

Clearly, the Senate is not fulfilling its constitutional duty to confirm judges. Some 58 Obama administration nominees are pending in the Senate to fill the 95 vacancies. Republican senators have complained that there should be a nominee for every vacancy — fair enough — but that does not explain why so many of the nominations have been stalled for so long.

The Senate, of course, has a duty to ensure that nominees are qualified. No one wants a “fast-tracked” judge hearing cases. But it’s hard to escape the conclusion that partisan politics rather than the quality of the nominees is the root of the problem when even consensus candidates must wait for prolonged periods.

This Monday, for example, the Senate is expected to fill some of those vacancies when six of the nominations go to the floor for a vote, meaning there has been a preceding agreement not to block the vote.

That generally leads to confirmation. Of those six, five have been pending since May and June — and all of them were approved with a unanimous vote by Democratic and Republican members of the Senate Judiciary Committee. In other words, there is no question that the nominees have the qualifications to do the job — so why the delay?

Good question -- why the delay?

Here's a list of the six nominees confirmed.

(One good thing -- at least we're not Mississippi.)

Judge Jordan Completes Senate Testimony!

Here is the Senate Judiciary Committee agenda (there was a live webcast too).

From a well-placed source:

He finished – no hard questions- both FL senators spoke very strongly in favor and Sen. Hatch on the Committee said “I am certainly going to support you” and that the Committee is doing a good job in moving judicial nominees and “should do even better.”

  

Federal JNC Applicant List.

Who is Brian Gilchrist and why is on all three applicant lists to be a federal judge for the SD FL, MD FL, and ND FL?

And how come he didn't apply to be U.S. Marshall?

That and more, revealed below......

JNC APPLICANTS NOTICE

Yawn -- Judicial Crisis Rolls On.

All those empty federal judicial seats keep piling up, leading to new and interesting ways to restate the same dismal state of affairs:

[T]he Senate confirmed fewer of [Obama's] district and circuit nominees than every president back to Jimmy Carter, and the lowest percentage of nominees – 58% – than any president in American history at this point in a President’s first term. By comparison, Presidents George W. Bush, Clinton, George H.W. Bush, Reagan and Carter had 77%, 90%, 96%, 98%, and 97% of their nominees confirmed after two years, respectively.

HOORAY -- we beat Carter!

But it's not all the Senate's fault:

The White House has increased its focus on getting as many judges as possible through ahead of next year after criticism from Obama's liberal backers that the administration did not make it a big enough priority.

"The amount of resources the administration put into judicial selection is nowhere near what (President George W.) Bush put in," said Elliot Slotnick, a political science professor at Ohio State University.

Although Obama had enough Democrats to overcome procedural hurdles during the first two years of his presidency, the Senate approved just 60 appellate and district court nominees, the smallest number in 35 years.

This rings true.

Consider the 11th Circuit, which has two vacancies including one dating back to August 2010 but no nominees awaiting confirmation.

In the SD FL, we have three vacancies (all considered judicial emergencies), with Kathy Williams awaiting confirmation for a seat vacated in February 2009(!).

Judge Scola was nominated in May for a seat vacated back in August 2010, and the third vacancy has been pending since January 2011 with no nomination in sight.

You can read Kathy and Judge Robert a/k/a "Bobby" Scola's questionnaires here and here, respectively.

Kathleen Williams Renominated to Fill Judge Hurley's Seat.

 

 Yawn -- the judicial appointment crisis continues as Obama renominates 40 plus judicial candidates, including our own federal public defender Kathleen Williams (originally nominated back in July):

The Obama administration sent the dozens of nominations -- 23 of which an official categorized as "emergency" nominees -- back to the Senate, where they will be considered anew by the Judiciary Committee. They may face an additional round of committee hearings, a Senate aide said, but that will be determined by Judiciary Chairman Patrick Leahy (D-Vt.) and the ranking Republican, likely to be, according to a Senate aide, Sen. Chuck Grassley (R-Iowa).

Hearings or no, the committee will have to vote on each candidate again before sending them back to the Senate floor for final consideration. And with more Republicans in the chamber than there were for the past two years, the nominees' chances may be slimmer.

Among those nominated again include 18 who had previously cleared the committee but were not confirmed by the Senate at large. That list includes contested figures like University of California law professor Goodwin Liu, Obama's nominee for the Ninth Circuit Court of Appeals, as well as California magistrate judge Edward Chen, nominated for the District Court for the Northern District of California. Twenty-four other renominated candidates never got a committee vote. 

Marco Rubio, full of ambition, needs to do something that might actually help some people down here and push this nomination for a floor vote.

(Updated to include better photo per Rick's not-so-subtle hint).

How to Become a Federal Judge.

You know that judge out in Virginia who just struck down the individual mandate in the new health care law?

The one who owns a stake in a GOP consulting firm that has directly worked against health care reform?

Turns out he wrote a memoir(!) in which very candidly explains -- boasts(?) -- about how he got to become a federal judge:

After Congress created a new judgeship for the Richmond Division in the Eastern District of Virginia in 2001, Hudson expressed his interest and picked up the support of the state's two Republican senators.

Hudson's description of the selection process candidly acknowledges its political nature. "Campaigning for a federal judgeship is almost as challenging as running for political office," he writes. "Rather than court voters, aspirants solicit endorsements from influential political activists with close ties to the senators, particularly the activists who raise the big money.

"That is where 20 years of active service to the Republican party, and helping in the various campaigns of each senator, paid dividends and gave me the edge," he said.

It's good to be the King!

Judges Behaving Badly (Again).

Readers know I detest excessive obsequiousness toward our judges -- of course they deserve respect and deference, but so often they are treated by attorneys as Kings and Queens when we are in front of them, yet mercilessly mocked and derided the minute they are out of our presence (this never happens at judicial receptions btw!).

This has a distorting effect both for the judge and the practitioner and enables a "cocooning" mindset that can negatively impact judicial temperament.

I'm not a fan of excessive familiarity or faux jocularity with our judges either -- nothing makes me cringe more than to hear an old "Dinosaur" of the bar give an introduction and refer to a federal judge by her first name or a diminutive nickname from back when they were "buddies" in law school.

Please, no "Freddie" Moreno -- it tells me more about your large ego (and concomitant insecurities) than it does about the person you are pretending to introduce.

Just call him "Chief Judge" and get out of the way.

(Same with ostentatious back-slapping displays at restaurants).

I'm reminded of all this by an incredible tale of judicial stupidity passed on by an alert reader (h/t Andrew Sullivan):

Danny Lampley (who clerked for me in law school), was jailed by Chancery Court Judge Littlejohn in Tupelo for failing to recite the pledge of allegiance in open court today.  Danny was one of the local lawyers who represented the plaintiff in the Pontotoc school prayer case years ago, working with the ACLU and People for the American Way.

I’m informed that Danny rose and was respectful, but did not recite the pledge.

Media is reporting that Danny has since been released after having been in jail from about 9:30 to about 2:30.

The order incarcerating him provides:

BE IT REMEMBERED, this date, the Court having ordered all present in the courtroom to stand and recite the Pledge of Allegience, and having found that Danny Lampley, Attorney at Law, failed and refused to do so, finds said Danny Lampley to be in criminal contempt of court.

The order states that for this, Danny Lampley “is hereby ordered to be incaraerated in that Lee County jail.” The order continues:

IT IS FURTHER ORDED, ADJUDGED, AND DECREED, that Danny Lampley shall purge himself of said criminal contempt by complying with the order of this Court by standing and reciting the Pledge of Allegiance in open court.

I had not blogged about this because I was in the process of preparing an emergency writ of mandamus on Danny’s behalf.  It’s apparently over now, and, hopefully, no legal action will be necessary.

Here’s a copy of Lampley contempt order.

Update:  I added this:  ”I’m informed that Danny rose and was respectful, but did not recite the pledge.”

What kind of judge jails a lawyer for standing respectfully in silence during the Pledge of Allegiance?

Someone whose head is nestled deep up his own judicially cocooned arse, that's who.

Here's An Idea.

Morning, kids!

Still thinking about the FBA B SD FL BABC.

I love that scene from Trains, Planes and Automobiles, where Steve Martin suggests to John Candy how to tell a story:

You know everything is not an anecdote. You have to discriminate. You choose things that are funny or mildly amusing or interesting. You're a miracle! Your stories have NONE of that. They're not even amusing ACCIDENTALLY! . . . And by the way, you know, when you're telling these little stories? Here's a good idea - have a POINT. It makes it SO much more interesting for the listener!

Just sayin'.

What a brilliant idea in this WP editorial on how to help clean up judicial conflicts:

A proposal by the American Academy of Appellate Lawyers offers improvements. The proposal calls on courts to make available with sufficient lead time the names of the judges scheduled to hear an appeal. Without such warning, lawyers and litigants might not know that a judge with a possible conflict is sitting on the case until they enter the courtroom. Raising an objection then is awkward, to say the least, and probably futile.

Sheesh, I wonder why no one thought of this before?

BTW, get ready -- summer's here.

The "Cocooning" Effect on Federal Judges

I've often wondered whether federal judges are sometimes treated with too much deference.

Obviously by virtue of their position and authority, and sometimes even their achievement (I kid, I kid!), federal judges deserve significant respect from practitioners and the public at large.

But a few recent examples call to mind whether there can be negative institutional effects when respect crosses the line into outright obsequiousness.

I was struck by Chief Justice Roberts and Justice Scalia's shock and dismay over actually having a question thrown to them during oral argument by Solicitor General Elena Kagan:

Two weeks ago, Solicitor General Elena Kagan, a leading contender for appointment to the Supreme Court, presented her sixth argument there. She bantered easily with the justices, and she seemed to have a special rapport with Justice Antonin Scalia, at one point responding to a question from him with one of her own.

Justice Scalia’s reply suggested she had crossed a line. “Well, I’m not making the argument,” he said, declining to answer her question.

Chief Justice John G. Roberts Jr., who has had some testy exchanges with Ms. Kagan over the last seven months, made the point more sharply.

“Usually we have the questions the other way,” he said.

“I apologize,” Ms. Kagan replied.

Is this healthy?

The American tradition -- unlike that in Europe or Japan or India, for example -- does not elevate people to position of kings or monarchs by their birth or fix them to classes by their social strata. We live in a fluid merits-based society where all are supposed to be equal and respect is typically earned, not awarded.

I wonder what effect there can be on cognitive thinking skills if you are never questioned or challenged on your viewpoints. I really can't think of another example where a public figure (in this case, a public servant) can expect never to be questioned or challenged publicly on their views. Certainly the President gets plenty of public pushback, hail he was even criticized for daring to condemn a Supreme Court decision in their presence.

The cocooning effect also seems to leave some judges out of touch with the real world or the lawyers who practice in it.

Recently we saw Supreme Court judges flummoxed by "texting" technology:

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer - asked what the difference was “between email and a pager?”

Other justices’ questions showed that they probably don’t spend a lot of time texting and tweeting away from their iPhones either.

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

Oy.

And I love this footnote by Justice Alito in yesterday's decision overturning the 11th Circuit in a Section 1988 fee-shifting case:

Justice Samuel Alito Jr., writing for the majority, said fee enhancements for superior attorney performance are permissible in exceptional cases. But in this case, he said, the judge did not provide "proper justification" for the enhancement under a series of factors he listed, aimed at proving that the lodestar fee alone would not have been adequate to attract competent counsel.

The federal fee-shifting law, Justice Alito wrote, "serves an important public purpose by making it possible for persons without means to bring suit to vindicate their rights. But unjustified enhancements that serve only to enrich attorneys are not consistent with the statute's aim."

In a footnote, Justice Alito added that if the $4.5 million fee enhancement had remained in place, the lawyers for the foster care plaintiffs "would earn as much as the attorneys at some of the richest law firms in the country."

How does the Judge know this (and why does it matter anyway)?

Also, if you only compensate civil rights attorneys their lodestar when successful, how do you incentivize them to take cases and front all the costs and expenses when they may not, you know, win every time? How does that further the statute's aim?

(Lawyers who do this work, feel free to chime in.)

Then we have a recent incident that shows how contracts sometime operate in the real world:

A computer game retailer revealed that it legally owns the souls of thousands of online shoppers, thanks to a clause in the terms and conditions agreed to by online shoppers.

The retailer, British firm GameStation, added the "immortal soul clause" to the contract signed before making any online purchases earlier this month. It states that customers grant the company the right to claim their soul.

"By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions."

GameStation's form also points out that "we reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction."

The terms of service were updated on April Fool's Day as a gag, but the retailer did so to make a very real point: No one reads the online terms and conditions of shopping, and companies are free to insert whatever language they want into the documents.

Gee, I know of some precedent that would indicate this contract is valid and enforceable right here in the SD FL!

Who's Pranking Our Federal Judges?

Did you all see this story about one of our federal judges getting ripped off by some scheming convicts:

Inmates at five Miami-Dade jails have free access to banks of phones, 600 in all, located in common areas. They can only make collect or prepaid phone calls of up to 30 minutes. To make them, an inmate must open an account with GTL and use their thumbprint to activate the phone.

Despite those safeguards, Corrections authorities say they are unable to prosecute violators for fraud. Investigators would have to prove the inmate arranged the scheme and actually made the calls -- a nearly impossible burden when an inmate could claim he simply allowed another cellmate to use his account, Ryan said.

As for the culprits outside the jails, tracking down the girlfriends or friends of the inmates is not easy because many use prepaid cellphones with numbers that disappear after a few weeks.

The Miami U.S. district judge, who asked not to be named because of security concerns, noticed a $120 charge to her fax line in January. She spent hours haggling with the phone company and the charges were eventually removed.

Investigators say the calls to the judge were made through the jail phone accounts of inmates Donte Jefferson, 19, an armed robber, and Lenare Palmer, 26, an accused killer. Both men's phone rights were suspended for 30 days. They were not charged criminally.

Jefferson is awaiting sentencing on April 16 for violating probation. Palmer, accused of gunning down a DJ at Liberty City's Caleb Center in July 2007, is awaiting trial on a murder charge.

There's something wrong with this story.

Ok, perhaps you cannot prosecute criminally the inmates, but how about losing their phone privileges if the conduct continues?

Also, I find it hard to believe -- frankly I think it's bullcrap -- that Global Tel*Link is completely helpless and unable to control or monitor in any way phony call forwarding done by inmates on these highly secure lines?

Come on.

If that is the case, maybe another provider can?

SFL Friday -- The Waiting (Is the Hardest Part)

I don't know about you, but I'm starting to clear my head and think about the weekend.

In that spirit I took a look at this Fox story on role-playing, and had to laugh at some of the set-up lines:

"Come, my lady, I know I am but a lowly peasant but, just this once, allow me to cover you with my kisses."

Where's the role-play in that?

In fact, that's pretty much verbatim how I begin my oral arguments nowadays.

Meanwhile, there's more delay in the federal judicial nomination process, with 9th Circuit nominee Goodwin Liu caught in the middle of the health care fight and two Fourth Circuit nominees stuck as well:

Two North Carolina judges are waiting on the Senate to confirm their appointments to the 4th Circuit Court of Appeals nearly two months after getting the nod from the chamber’s Judiciary Committee.

Albert Diaz is a state Superior Court judge; Jim Wynn sits on the state appellate court. Neither ran into much resistance during their confirmation hearings.

“As far as I know, there are not specific objections to them,” U.S. Sen. Kay Hagan said in a conference call with reporters last week.

Makes sense to me!

Finally, it's long overdue we hear about some intended acceleration, you can blame it on the nannies, and see, this is what I keep telling you.

Have a great weekend everyone!

Slowdown in Judicial Nominating Process?

Ever wonder why Obama is moving so slow on judicial nominations?

Here's a good article on the problem:

An early chance for the Obama administration to reshape the nation's judiciary -- and counter gains made in the federal courts by conservatives -- appears close to slipping away, due to a combination of White House inattention and Republican opposition.

During President Obama's first year, judicial nominations trickled out of the White House at a far slower pace than in President George W. Bush's first year. Bush announced 11 nominees for federal appeals courts in the fourth month of his tenure. Obama didn't nominate his 11th appeals court judge until November, his 10th month in office.

Moreover, Obama nominees are being confirmed at a much slower rate than those of his predecessor, largely because of the gridlocked Senate.

Key slots stand without nominees, including two on the D.C. Circuit Court of Appeals, the body that reviews decisions by federal agencies and a court that is considered second in importance only to the Supreme Court. Federal judicial vacancies nationwide have mushroomed to well over 100, with two dozen more expected before the end of the year. To date, the Obama administration has nominees for just 52 of those slots, and only 17 have been confirmed.

That's a pretty poor track record, at a time when judges are overworked and have important issues on their dockets (ok, some of them).

Why is this happening? It's that darn 60 vote thing again:

Judge confirmations have become like any other piece of legislation on the Hill. Democrats argue that the GOP leadership is requiring time-consuming cloture votes -- motions to cut off debate that need 60 votes to pass and then often require hours of floor time to be spent before a final vote can be taken -- on judges that are unopposed.

Earlier this month, Republicans required a cloture vote on Barbara Keenan, a nominee to the 4th Circuit Court of Appeals in Richmond, Va. After that vote, Keenan was confirmed by a 99-0 tally.

By contrast, more than half of Bush's judicial nominees were confirmed by voice vote or unanimous consent. Democrats consented to their confirmation without requiring time to be spent on a roll-call vote on the Senate floor.

Can Harry Reid "deem and pass" some of these nominations?

The "Stealth War on Judges" And Paul Begala.

So I see the Senate finally confirmed Joseph Greenaway Jr. to the 3d Circuit, unanimously, after being nominated back in June 2009:

Joseph Greenaway Jr. is the latest example of a delayed nominee with no opposition. Nominated in June for the 3rd U.S. Circuit Court of Appeals, he won the unanimous backing of the Senate Judiciary Committee in October. The Senate could have confirmed him immediately, without even a formal vote, but it took until Feb. 9, when Greenaway was confirmed, 84-0.

"He should have been confirmed last year, and he would have but for Republican objection," said Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee, in remarks prepared for the Senate floor.

Seven other nominees for district or appellate judgeships had similar experiences before getting confirmed unanimously. Ten nominees are awaiting votes, and many of them face no opposition.

Republicans say the delays are warranted, given the rigorous vetting involved for lifetime appointments to the federal bench. "We need to do our homework. Do our background. See what the bar association says. See what the FBI says," said Sen. Jeff Sessions, R-Ala., the top Republican on the Judiciary Committee, at a Feb. 11 hearing.

That is just disgraceful.

Regardless of your politics, there is no reason to hold up judicial nominations where the nominee is not controversial, there is no public opposition, and no red flags have been raised.

Speaking of politics, it felt like 1998 all over again last night as Ira Leesfield received the AJC's Judge Learned Hand Award.

Bill Clinton, Bob Graham, Bill Nelson, ok.

But Paul Begala?

Finally, the first federal drywall trial, where Ervin and Victor are co-lead counsel, is set to commence Monday in New Orleans, but without key Chinese defendants:

The proceedings will be conducted without Taishan's participation, so there was no one to contact for comment. On Thursday, Knauf Plasterboard Tianjin Co. Ltd., another drywall manufacturer from China which had intervened in the Taishan proceedings because of its interest in any precedents that could come out of the case, abruptly dropped out, leaving no defense witnesses and no one to cross-examine the plaintiffs' witnesses.

Should make the Daubert hearing a bit easier, don't you think?