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?

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?

Your Friday Morning Digital Dump!

Hi kids, let's see what's happening around town this morning:

1.  Kathy Williams investiture.

2.  Poor David Boden.

3.  Republicans don't like the federal courts anymore (related -- happy 10th birthday, Patriot Act!).

4.  Good federal judges matter.

5.  More Jeremy Alters.

(Of course he has to file suit first!)

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.”

  

Check Out This Cool WH Infographic!

How boring are judicial confirmations to the general public?

It's amazing to me that Democrats continue to be stuck with horrible branding on issues of tremendous importance, like "the mandate," "entitlements," or "Harry Reid."

Still, they keep trying.

In yet another effort to spiff up the exciting "judicial confirmation crisis" the WH has released the above nearly impossible to read infographic (actually, you need to click on the image or click here to expand), which sets forth in neat flow charts how disastrous the current situation is with our federal judiciary.

Here's some of the rosy news:

Unfortunately, the delays these nominees are encountering on Capitol Hill are equally unprecedented: earlier this month, the Senate left for its August recess without considering 20 eminently qualified candidates, 16 of whom had passed through the bipartisan Senate Judiciary Committee completely unopposed, a development the Washington Post called “not only frustrating but also destructive” in an editorial published yesterday.

The victims of these delays, of course, are the American citizens who are being denied the fair and timely judicial proceedings they deserve because of the chronic shortage of federal judges on the bench.  Stephen Zack, president of the American Bar Association, told Senate leaders in a recent letter that the abundance of vacant federal judgeships “create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions.”

I know I know -- your anecdotes about how slow things seem at the federal courthouse and one time you saw a judge leave work early trump all these stupid "statistics" and "data" so problem solved.

But question -- is there any reason to delay Judge Jordan's confirmation to the 11th?  Would it be good if he didn't make it?

If the answer is no maybe we should try to help accelerate this process.

My Baby Steve Zack, He Wrote Me A Letter!

Not one to simply let Chief Judge Moreno hog all the spotlight, ABA Prez Steve Zack (captured mid-phone above) has jumped in with his own letter about all those darn federal judicial vacancies, and why can't the Senate just get along pre-recess and confirm a few of these folks so that whole system of laws thing doesn't break down, don'tcha know:

Thirty-eight of the present vacancies have existed for so long and created such untenable workloads for the remaining judges on the courts that the seats have been declared judicial emergencies by the Administrative Office of the U.S. Courts. As lawyers who practice in federal courts across this nation, ABA members know firsthand that long-standing vacancies on courts with staggering caseloads impede access to the courts and create strains that will of the courts to vindicate constitutional rights or render fair and timely decisions. In Arizona, for example, the Speedy Trial Act has been temporarily waived, and criminal defendants wait up to 6 months for a trial, while businesses and individuals wait up to 2 years before their cases are heard.

So far so good (I mean bad).

But then Steve continues:

We realize that the aging of our federal judiciary has contributed to the growing vacancy crisis.

 Hey now!

Being the silver-tongued devil that he is, Steve politely refers to the nationwide decaying judge issue as "attrition":

According to Department of Justice estimates, 60 new vacancies will be created through attrition each year for the next decade. Obviously, progress toward reducing vacancies requires a confirmation rate that outpaces the attrition rate; at present, it is barely keeping abreast of it.

So I believe what Steve is saying is we either need to develop new methods of preserving and extending the lives of our aging federal judges -- perhaps through alien intervention, cloning, cryonics, or sophisticated and groundbreaking time-travel technologies that are currently beyond our scientific capabilities -- or we just need to confirm some of these nominees.

Hard to tell which is a more realistic and practical course of action given what's happening in DC at the moment.

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

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).

Microsoft Billionaire Foiled By Iqbal!

Boy this lame-duck Congress is actually getting a few things done -- (a few) new federal judges even!

So what's the status of efforts to roll back Twombly or Iqbal?

Senator Spector's bill is D.O.A., as is the House version.

That's good news for some, except Microsoft billionaire Paul Allen:

A judge has dismissed Microsoft co-founder Paul Allen’s lawsuit against Google, Apple, Facebook and others for patent infringement.
Back in August, Allen originally claimed that 11 different companies, including YouTube (), Netflix and AOL, had violated four different patents associated with web search and e-commerce. These patents are tied to both software and business methods.

Now, however, a court has sided with Google et al. in a motion to dismiss the case, saying Allen’s claims were too vague and lacked “adequate factual detail to satisfy the dictates of Twombly and Iqbal” — two cases that are precedents for requiring adequate evidentiary support.

Sheesh, you'd think Allen's lawyers would know how to plead around this standard, but apparently not.

From the Court order:

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because Plaintiff has failed to identify the infringing products or devices with any specificity. The Court and Defendants are left to guess what devices infringe on the four patents. Plaintiff only indicates that Defendants have websites, hardware, and software that infringe on the patents or that they are encouraging third parties to use products that infringe on the patents. This fails to indicate to Defendants which of their myriad products or devices may be at issue. These allegations are insufficient to put Defendants on "notice as to what [they] must defend." McZeal, 501 F.3d at 1357 (citing Twombly, 550 U.S. at 565 n.10). They are also too generic to satisfy Form 18. Plaintiff urges the Court and Defendants to have patience and simply await delivery of the infringement contentions as required by Local Rule. This ignores that Local Rules do not trump the Federal Rules of Civil Procedure or the Supreme Court's mandate in Twombly and Iqbal. Fed. R. Civ. P. 83(a)(1); Iqbal, 129 S. Ct. at 1950, 1953. Plaintiff's complaint is little more than labels and conclusions, which are inadequate under Twombly, Iqbal, and even Form 18. The Court GRANTS the motions to dismiss.

I don't do patent litigation, but I'm not sure a heightened pleading standard made the difference here.

You can read the complaint and judge for yourself.

Judicial Appointments Crisis -- Yawn.

As power begins to shift in Congress, judicial appointments continue to lag, with little to no public attention or even interest.

Who's to blame?

Some say Obama is too slow on his nominations, others that a partisan Congress is holding the nominations hostage.

At this point I'm sick of excuses and just want some action.  The Economist takes a hard look and pretty much agrees:

Wherever the fault lies, the backlog is a serious problem. The Judicial Conference, the policymaking body of the federal court system, ranks 50 of the vacancies as “emergencies”. These include district judgeships with 600 or more cases filed and moving nowhere, or 700 or more filings for a circuit panel. The eastern district of California has a thousand-case pile-up. Border courts in Texas, dealing with drugs and immigration cases, are overwhelmed. The small but important district of Delaware, where many companies are incorporated, is making do with just two federal judges, causing havoc in the various commercial cases. Bill Robinson, the incoming president of the American Bar Association, says that the quality of justice inevitably suffers: “Witnesses die, memories fade.”

But the issue fails to exercise the general public—or at least, the general Democratic public. After judges seemed to get too uppity in the 1960s and 1970s, Republicans successfully turned “activist judges” into bogeymen, creating bodies like the Federalist Society to nurture conservative legal talent. And Mr Bush effectively used the bully pulpit to call for an “up-or-down” vote on all his nominees at once, leading to a confrontation but ultimately a compromise with Democratic senators in 2005. Dozens of Mr Obama’s nominees are still waiting for something similar. 

 Sure, all of a sudden Obama's going to develop a backbone and push the GOP to brinkmanship on this issue?

I'm not holding my breath.

They Write Letters, Old Judges Edition.

What do cranky retired federal judges do for fun?

They write letters denouncing the judicial appointment crisis, of course:

But the use of secret holds and filibusters undermine the credibility of the judiciary and, by contributing to lengthy vacancies on the courts, impede the courts’ ability to ensure that cases can be heard and adjudicated in a timely fashion. At this moment, our courts are overburdened and increasingly certain vacancies are being designated as “emergencies” by the Administrative Office of the Courts because of the length of time the court has been without a judge. This situation is untenable for a country that believes in rule of law.

"Rule of law" -- how deliciously quaint.

Given the myriad and pressing problems facing our nation, to say there is an "enthusiasm gap" among the electorate regarding judicial nominations is an understatement.

But we're grown-ups.

We're supposed to help focus attention on things that matter, and by that I mean Koran-burning nutjobs and enforcing "no-Mosque" zones in culturally significant spots like Murfreesboro, Tennessee.

The sad irony is, as Dahlia Lithwick noted recently in Slate, that the issue is truly bipartisan:

Whether you support Obama's legislative agenda or abhor it, having properly functioning courts should matter, because today in America every single legislative action has an equal and opposite legal reaction.

I know I know, Bork payback trumps all.......

SFL Friday -- Rick Scott Can Spend As Much As He Wants!

 Well I'm off to find some cool, cleansing waters to windsurf, but before I go I wanted to mention this dispiriting report on the EPIC FAIL of getting Obama's judicial nominees on the bench:

Judicial confirmations slowed to a trickle on the day President Barack Obama took office. Filibusters, anonymous holds, and other obstructionary tactics have become the rule. Uncontroversial nominees wait months for a floor vote, and even district court nominees—low-ranking judges whose confirmations have never been controversial in the past—are routinely filibustered into oblivion. Nominations grind to a halt in many cases even after the Senate Judiciary Committee has unanimously endorsed a nominee.

Such tactics are completely unprecedented, and so are their results. Fewer than 43 percent of President Obama’s judicial nominees have so far been confirmed, while past presidents have enjoyed confirmation rates as high as 93 percent. And President Obama’s nominees have been confirmed at a much slower rate than those of his predecessor—nearly 87 percent of President George W. Bush’s judicial nominees were confirmed.

 Bork Bork Bork Bork I know, but this is not very healthy is it?

In other news, Rick Scott gets his very own 11th Circuit opinion:

We agree with the district court that Davis requires Florida to justify its excess spending subsidy by reference to the anticorruption interest, but conclude that Florida cannot satisfy its burden of establishing that its subsidy furthers that interest in the least restrictive manner possible. We reverse the judgment of the district court and preliminarily enjoin the Secretary of State of Florida from releasing funds to McCollum under the excess spending provision.

This means Scott can spend almost as much as a huge corporation (thank you, Citizens United).

It also means Big Bad Bill will have to rely solely on his charisma.

(He's screwed.)

Have a great weekend!

UPDATE:  I'm advised that I apparently posted a photograph of a different Rick Scott.  My apologies to the wacky children's singer.

(Sheesh, I'm starting to act like the Herald).

The Herald On Replacing Justice Stevens (Yawn)

Happy wet Monday, kids.

Did you see this controversial, bold, assertive Herald editorial on replacing Justice Stevens?

Neither did I.

Instead we got the usual opinion-free, can't we all get along, both-sides-are-to-blame, warmed-over Broderisms that reflect an alternate reality far apart from the one the rest of us inhabit.

Consider this hard-hitting statement:

Republicans, for their part, have an obligation to hold their fire unless there are well-founded reasons to object. If Mr. Obama makes a centrist choice, the nominee deserves to be treated as such.

Whoa!

Calm down there, buddy.

Any idea how to make this pipe dream a reality?

Mr. Obama no doubt believes that a president's prerogatives should be respected, barring a truly awful choice. He can help his own case -- as he did with Judge Sotomayor -- by avoiding the selection of an ideological firebrand.

But that contradicts the entire first section of the editorial, which is about how the right went after Sotomayor, "put [her] through the proverbial wringer for the sake of politics" and "found spurious reasons to vilify her character and disparage her judicial record" even though she was a well-respected jurist comfortably within the mainstream of American jurisprudence.

Is there anything at all in the air to suggest something different this time around?

Granted, the Herald's editorials have always been for the most part inoffensive, milque-toast expressions of conventional wisdom, tentatively expressed.

But this one literally adds zero to an important issue that requires an accurate -- as opposed to idealized -- understanding of today's political landscape.

If wishes were ponies.....

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!

First Openly Gay Federal Judicial Nominee

I didn't even realize this was a milestone that had not yet been reached, but apparently it is:

Sen. Chuck Schumer (D-N.Y.) is recommending to President Obama that he nominate for the first time ever an openly gay male to serve on the federal bench, according to the senator’s office.

The senator has designated Daniel Alter to serve as judge for the U.S. District Court for the Southern District of New York. His appointment is subject to Senate confirmation.

For judicial nominations, presidents traditionally abide by the recommendations made by the senior senator from the state where there’s a vacancy, which in the case of New York is Schumer.

In a statement, Schumer said he recommended Alter because he’s “a brilliant attorney who possesses the knowledge, balanced views and temperament required of a federal judge.”

“His outstanding leadership skills, his commitment to justice, and his extensive experience make him an exceptional choice for a position on the federal bench,” Schumer said. “I’m proud to nominate Daniel Alter. Period. But I am equally proud to nominate him because he is a history-maker who will be the first openly gay male judge in American history.”

I'm not sure where ND CA Chief Judge Walker fits in on all this.

Meanwhile, closer to home, opposition is building re: the recent incident involving two Miami Beach police officers and a beat-up gay guy.

More on South Beach and its evolving relationship to The Gays here.

Obama and Judicial Appointments

Well that was a restorative weekend, right? Great weather, the Dolphins won, Ted Ginn didn't suck, so already things seem to be getting a little better. And yes, the windsurfing was sublime.

Here's an interesting article on the number of judicial appointments at the district and appellate level that Obama will likely be making in the near-term. Note his ability to help moderate the deeply conservative 4th Circuit:

By contrast, 14 seats are open on appeals courts or will be by the end of January. Democratic appointees are a majority on only one of the 13 federal appeals courts, the San Francisco-based 9th U.S. Circuit Court of Appeals.

These are the courts that as a practical matter have the final say on everyday issues that affect millions of people because the Supreme Court accepts less than 2 percent of the cases appealed to the justices.

"Most of the action is in the lower courts, from labor and employment law to civil rights to punitive damages to affirmative action and how the death penalty is administered," said Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute in Washington.

The traditionally conservative 4th U.S. Circuit Court of Appeals, based in Richmond, Va., is the first court on which Obama can change the balance of power quickly. It has four openings and is divided now between five judges appointed by Republican presidents and five named by Democrat Bill Clinton.

Covering Maryland, the Carolinas and Virginia, the 4th Circuit hears a large share of national security and intelligence cases because Virginia is the home of the Pentagon and the Central Intelligence Agency.

Shapiro estimates that within four years, Obama can name enough judges to give Democrats majorities on nine of the 13 appeals courts.

Nan Aron, president of the liberal Alliance for Justice, has complained that Bush appointees have been more likely to rule in favor of executive authority, businesses in their disputes with workers and consumers, and limiting access to the courts.

Judges appointed by Obama can be expected to side more often with "workers, consumers, homeowners, women and people of color who were discriminated against," Aron said.

I don't know if it's as reductionist as the writer paints it above, but certainly I'd like to see a rollback on the massively expanding doctrine of preemption in tort and products cases, more awareness of the nature of business misconduct and how it affects the average consumer, and of course a return to solid constitutional values that unfortunately we have strayed too often from over the last six or so years. Oh, and for gosh sakes, please close Gitmo.

Is that too much to ask?