11th Circuit in 2-1 decision saves Rick Scott on clemency decision for now (with UPDATE on make-up of 11th Circuit)

Last week, Judge Marcus wrote this opinion (joined by William Pryor) backing Gov. Scott on the process for convicted felons who have served their time to be re-enfranchised. Judge Beverly Martin dissented. The AP summarizes here:

With time running out, a federal appeals court late Wednesday sided with Florida in an escalating battle over the state’s process for restoring voting rights for former prisoners.

U.S. District Judge Mark Walker had given Florida until Thursday to create a new process after ruling in February that the state’s current system is unconstitutional and arbitrary, with decisions possibly swayed by politics and racial factors.

But a three judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals blocked Walker’s ruling while it considers an appeal from Gov. Rick Scott and other Florida Republican officials.
***
Walker’s ruling had kept the ban intact, but he had challenged the current system that requires a former prisoner to wait between five and seven years before they can even ask to have their voting rights back. The governor and the three elected Cabinet members then decide each request individually, subject to the governor’s unilateral veto.

It wasn’t always this way. Shortly after taking office in 2007, then-Republican Gov. Charlie Crist convinced two of the state’s three Cabinet members to approve rules allowing the parole commission to restore voting rights for nonviolent felons without hearings, and ultimately more than 100,000 felons were allowed to vote again.

Scott and state officials changed the process in 2011, and since then fewer than 3,000 have had their rights restored. The governor has defended the change, saying that former prisoners should have to demonstrate they can remain out of trouble before their voting rights are returned.

Last year, however, a group of former prisoners who had their applications turned down sued the state.

In its split ruling, the federal appeals court concluded that Florida has a good chance of prevailing in its appeal and questioned Walker’s decision to order the state put in place a new process. U.S. Circuit Judge Stanley Marcus wrote that there should not be a “rushed decision-making process created on an artificial deadline.”

“There is wisdom in preserving the status quo ante until a panel of this court, on an expedited basis, has had an opportunity on full briefing to come to grips with the many constitutional and equitable issues that have been raised,” Marcus wrote.

UPDATE -- A few readers have emailed me expressing surprise that with this panel, Marcus ended up siding with Gov. Scott.  But that's really no surprise.  Former President Bill Clinton appointed 4 judges to the 11th Circuit -- Rosemary Barkett, Frank Hull, Stanley Marcus, and Charles Wilson.  Marcus and Hull have been two of the most conservative members of the Court since that time (over 20 years).  Judge Hull just took senior status, and Judge Barkett no longer serves on the Court, so that leaves Charles Wilson and Stanley Marcus as two members of the "old" guard.

There are 12 active members of the 11th Circuit:

Chief Judge Ed Carnes (Bush)
Gerald Tjoflat (Ford)
Stanley Marcus (Clinton)
Charles Wilson (Clinton)
William Pryor (Bush)
Beverly Martin (Obama)
Adalberto Jordan (Obama)
Robin Rosenbaum (Obama)
Julie Carnes (Obama, taking senior status in June; Trump has nominated Britt Grant)
Jill Pryor (Obama)
Kevin Newsom (Trump)
Elizabeth Branch (Trump)

So that makes 6 Republican appointments (including Grant) and 6 Democratic appointments. But practitioners know that the 6 Dem appointments are not all "liberal" leaning.  And some of them, like Marcus, are extremely conservative, especially on criminal justice issues.  It's too early to tell how the Trump appointees are going to line up.

RIP Alan Ross

Damn, this is a really sad one. Alan Ross passed away last night after battling pancreaticcancer. He was a really good guy. Here are the funeral arrangements:

Funeral Sunday 3:15pm
Star of David Memorial Gardens Cemetery and Funeral Chapel
7701 Bailey Road
North Lauderdale, FL 33068
Shiva immediately following at the home of Adam & Jessica Ross
10292 Sweet Bay Manor
Parkland, FL 33076

BREAKING -- President Trump nominates three to SDFLA bench

Congratulations to Roy Altman, Rudy Ruiz, and Rodney Smith for being officially nominated to the U.S. District Bench for the Southern District of Florida. Here is the White House press release:

If confirmed, Roy K. Altman of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Roy Altman is a partner at Podhurst Orseck P.A., where his practice has focused on aviation and commercial litigation since 2014. Before entering private practice, Mr. Altman served for six years as an Assistant United States Attorney for the Southern District of Florida, where he prosecuted hundreds of cases covering the full range of Federal criminal conduct. Over this period, Mr. Altman tried more than 20 cases to jury verdict and argued several of these before the U.S. Court of Appeals for the Eleventh Circuit. During his service as a Federal prosecutor, Mr. Altman won a number of awards including the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Team” in United States v. Mentor (first-degree murder), the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Performance” in United States v. Flanders (human trafficking), the Federal Bar Association Young Federal Lawyer Award (one of five attorneys under 37 nationwide), and the “Federal Prosecutor of the Year” award from the Miami-Dade County Association of Chiefs of Police and the Law Enforcement Officers Charitable Foundation. Upon graduation from law school, Mr. Altman served as a law clerk to Miami-based Circuit Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit. Mr. Altman earned his B.A., cum laude, from Columbia University, where he played baseball and football, and his J.D. from Yale Law School, where he served as the projects editor of the Yale Law Journal.

If confirmed, Rodolfo “Rudy” Ruiz II of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rudy Ruiz currently serves as a Circuit Judge in the Eleventh Judicial Circuit of Florida since his appointment by the Governor in 2014. As a Circuit Judge, Judge Ruiz has presided over both civil and criminal divisions. He previously served for two years as a County Court Judge in the Eleventh Judicial Circuit, where he handled a full range of civil and criminal cases. Before ascending to the bench, Judge Ruiz served for three years as an Assistant County Attorney in the Miami-Dade County Attorney’s Office, where he handled a wide range of civil defense matters in Federal and State court at both trial and appellate levels. Before joining the County Attorney’s Office, Judge Ruiz practiced corporate law in the Miami office of White & Case LLP. Upon graduation from law school, Judge Ruiz served as a law clerk to Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida. Judge Ruiz earned his B.S. from Duke University and his J.D. from Georgetown University, where he was an articles editor of the American Criminal Law Review.

If confirmed, Rodney Smith of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rodney Smith serves as a Circuit Judge in the civil and felony criminal divisions of the Eleventh Judicial Circuit, where he has served since his appointment by the Governor in 2012. In this capacity, he also serves as co-chair of the Diversity Committee of the Florida Conference of Circuit Judges. He previously served for four years as a Miami-Dade County Court Judge of the Eleventh Judicial Circuit, where he handled both civil and criminal cases. Before ascending to the bench, Judge Smith served as a senior assistant city attorney in the Office of the City Attorney for Miami Beach, where he handled a broad range of civil defense matters. Before joining the City Attorney’s office, Judge Smith practiced insurance defense law at a number of private Miami firms. Upon graduation from law school, Judge Smith served for four years as an Assistant State Attorney in the Miami-Dade County State Attorney’s Office. Judge Smith earned his B.S., cum laude, from Florida Agricultural and Mechanical University, and his J.D., cum laude, from the Michigan State University College of Law.

This still leaves two open spots on the court. No word on whether the JNC will forward new names or whether the White House is going to pick different people.

News & Notes

1. Congrats to Judge Wilson for being recognized by the Green Bag for exemplary legal writing for his dissent in U.S. v. Vail-Balon (en banc).

2. It's only a matter of time before Judge Rosenbaum is also recognized. Although this opinion From Monday is unsigned, it sure looks like she wrote it. From the conclusion of this pro-se litigation about 1983 suits: "We conclude that Heck and its progeny, including Balisok, do not bar this lawsuit. On the contrary, Dyer requires that the suit be allowed to proceed through the threshold gates of Heck. We therefore vacate the judgment of the District Court and remand for further proceedings not inconsistent with this opinion."

3. The Federal Bar is putting together this timely symposium on sexual harassment in the workplace. The panel, moderated by Celeste Higgins, includes: Honorable United States Magistrate Lauren Fleischer Louis, J.J. Piskadlo Jr., Legislative Assistant to Senator Lauren F. Book, Robert Weisberg from EEOC Miami, Grissel Seijo from Restaurant Brands International, and John Byrne, Esq., partner at Leon Cosgrove, LLP. When: Thursday, May 17, 2018, 11:30am – 1:30pm Register here.

Should judges be appointed or elected?

After reading the Justice Building Blog about Broward Judge Merrillee Ehrlich, I started thinking about this question again. I think the appointment process leads to more qualified judges. But elections, at least in theory, hold judges accountable for bad behavior. Perhaps judges should be appointed but not for life. What about having a committee that evaluates judges every 5 years to decide whether they get re-upped or not?

From Rumpole:

2:37: Yells at defendant who responds to question not to talk.
3:04: Yells at lawyer to keep quiet defendant

3:53: Yells at defendant- "I'm not here to talk to you about breathing treatment."

Reflect on that for a moment. This is a misdemeanor case. The defendant is obviously not well. She's in a wheel chair. We learned later that she had chronic obstructive pulmonary disease and in fact died within a few days of being released. The defendant indicates that she needs treatment to breathe. Not for pain. But to perform the basic function all humans need to perform to live. And the response of a member of the Broward Judiciary was that she didn't want to talk about it. Yes, this is the Broward Judiciary on full display for the world to see. They abuse defendants and lawyers all the time. However most of them have enough self control not to do it on video in this fashion.

4:10: "I’m not going to spend all day with her interrupting me."
4:50: Judge yells again
5:55 : "You’ve already said too much."
6:10 Judge Throws a fit and waves arms: "Don’t even say yes..."

6:35: And here's what a kind and decent judge says to a handicapped person in a wheel chair that they've just ordered to go to pre-trial services: "Arrange for someone to carry you if you can’t get there."

Jane and Marty Raskin join President Trump's legal team

There is always a Miami connection.

From McClatchy:

A husband-and-wife legal team from Miami is joining President Donald Trump’s personal legal team in the special counsel's Russia investigation.

Jane Serene Raskin and Marty Raskin, two former federal prosecutors and veteran defense lawyers who have a private practice in Coral Gables, are joining Trump’s team along with former New York City Mayor Rudy Giuliani.

“Jane and Marty are highly respected former federal prosecutors with decades of experience. They have a nationwide practice and reputation for excellence and integrity,” Trump’s personal attorney, Jay Sekulow, said in a statement Thursday.

The big debate among criminal lawyers for the past few months has been — would you take that case if he called... the Raskins have said yes. They are well-respected lawyers down here, who are apparently Trump supporters.  Their website is here. And they are joining Rudy Guliani.

Congrats to Judge Lauren Louis

The investiture of Magistrate Judge Lauren Louis was wonderful. She gave a heartfelt speech that was one of the best investiture talks I have seen. It's easy to see that she will be a great judge. Congrats!

News & Notes

1.  Gorsuch is channeling his inner-Scalia.  The opinion is Dimaya v. Sessions.  District judges should get ready for the ensuing litigation.  It shows again that the trial and appellate courts are so law-and-rder conservative with its rulings that it takes a slightly less conservative Supreme Court to stop the get-away conviction train every now and then. This time it took Justice Gorsuch. From SCOTUSBlog:

Gorsuch concurred in part and concurred in the judgment. He emphasized at the outset that “[v]ague laws invite arbitrary power.” He defended the originalist foundations for vagueness challenges that Justice Clarence Thomas questioned at length in his dissent, tracing the history of those challenges back to Blackstone’s condemnation of vague statutes and the “tradition of courts refusing to apply vague statutes.” He further noted that the concern with vague statutes was not “confined to the most serious offenses like capital crimes.” Addressing the government’s argument that a more lenient standard of review should apply in civil cases, Gorsuch would have gone even further than the plurality. He suggested that provisions of civil laws should be scrutinized closely for vagueness even outside the deportation context: “Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?”

2.  Sotomayor broke her shoulder.

3.  RIP Harry Anderson.  When I was growing up, I thought that every judge should be like him (with a little Judge Wapner).  He was the best.  From the LA Times:

"Night Court" and "Dave's World" star Harry Anderson received a tip of the hat from costars and fellow magicians sending out heartfelt tributes to the late sitcom star.

The actor, who died on Monday at age 65, began his lengthy career in stand-up and magic, then notably played judge Harry T. Stone on the Emmy-winning NBC sitcom "Night Court."

Costar John B. Larroquette and several others fondly remembered the actor — and his iconic fedora — with messages honoring Anderson's memory.

"He was wicked smart. He was wicked funny. He had a big laugh. He had a big heart. He delighted in legerdemain especially when he caused someone to scratch their head and proclaim; How the hell did you do that? And he could eat a hamster like no one I ever knew," the actor tweeted late Monday, describing their work on the show as "a carnival fun ride with Harry."

How should we handle attorney-client privilege?

Alan Dershowitz has this proposal:

There is a better and safer way to deal with this issue than the current approach of using prosecutors and FBI agents to do the sifting. A law should be enacted under which anytime the government is seeking to search an office or home that may contain confidential and privileged information, the search team must be accompanied by a judicial officer – a judge, a magistrate or someone appointed to fulfill that function.
That judicial officer should be the only one ever to read material that is eventually deemed to be confidential. A judge can be trusted not to leak far better than FBI agents or prosecutors. And if a judge were to leak, it would be easy to identify the source of the unlawful disclosure, since the single judge would be the only one to have access to the confidential material.

And Trump's lawyers have filed papers this weekend asking to do an initial review before the government gets a chance.  Here's the WSJ coverage:

Lawyers for President Donald Trump say they should be allowed to review the material seized by the Federal Bureau of Investigation last week from Mr. Trump’s longtime lawyer Michael Cohen before government investigators begin their ​own, according to a court filing late Sunday.
The filing asks​ a Manhattan federal judge to stop the government from using a “taint team” of prosecutors to review the evidence for documents protected by attorney-client privilege and to issue an order allowing Mr. Cohen, Mr. Trump and their legal teams to comb through it first for “materials over which the President asserts privilege.”
After Mr. Trump identifies which communications he believes are privileged, the government taint team can make objections, the filing said, and the court can make the final determination about which materials investigators are allowed to see.

 Trump won't be at the hearing today.  He's in Miami.  Here's how to avoid the traffic.

SDFLA Judges appoint Ben Greenberg as U.S. Attorney

Attorney General Sessions appointed Ben Greenberg as U.S. Attorney, but that appointment expires on April 28.  The President still has not nominated a U.S. Attorney for this District.  So under 28 U.S.C. 546(d), the judges appointed Greenberg "until further Order of th[e] Court."

Two federal judges nominated in Florida, but not the SDFLA

But we did get a Marshal:

 If confirmed, Gadyaces S. Serralta of Florida will serve as the United States Marshal for the Southern District of Florida.  Gadyaces Serralta is currently a Major with the Miami-Dade Police Department, a position he has held since 2015.  In this capacity, he also serves as the Commander of the Palmetto Bay Policing Unit. Mr. Serralta began his law enforcement career with the Miami-Dade Police Department in 1990.  He served as a patrol officer and sergeant, working primarily with the Criminal Street Gangs Unit and Organized Crime Section, and then served as lieutenant in charge of the Robbery Intervention and Narcotics Detail before assuming his current position as Major. Mr. Serralta earned a B.S. in Criminal Justice Studies from Florida International University and a M.S. in Leadership from Nova Southeastern University.

Here are the two judicial nominees from the Middle and Northern Districts:

If confirmed, Wendy Williams Berger of Florida will serve as a District Judge on the U.S. District Court for the Middle District of Florida.  Wendy Berger serves as a District Judge on the Fifth District Court of Appeal, where she has served since her appointment by the Governor in 2012. Prior to her elevation to the Court of Appeal, Judge Berger served for seven years as a Circuit Court Judge on the Seventh Judicial Circuit, where she handled the full range of civil, criminal, and death penalty cases. Before ascending to the bench, Judge Berger served for four years as Assistant General Counsel in the Executive Office of the Governor. Prior to joining the Governor's Office, Judge Berger spent seven years prosecuting criminal cases as an Assistant State Attorney. Judge Berger earned her B.S., cum laude, from Florida State University and her J.D. from the Florida State University College of Law, where she was a member of the Florida State University Law Review.

If confirmed, Allen C. Winsor of Florida will serve as a District Judge on the U.S. District Court for the Northern District of Florida.  Allen Winsor serves as a Judge on the First District Court of Appeal. Prior to his appointment to the bench, Mr. Winsor served for nearly three years as the Solicitor General of the State of Florida, where he represented Florida's interests in State and Federal courts and argued two cases in the Supreme Court of the United States. Before joining the Florida Attorney General's Office, Mr. Winsor was a partner in the Tallahassee office of GrayRobinson, P.A., where he practiced civil, constitutional, and appellate litigation. Upon graduation from law school, Mr. Winsor served as a law clerk to Judge Ed Carnes of the U.S. Court of Appeals for the Eleventh Circuit. Mr. Winsor earned his B.S.B.A. from Auburn University and his J.D., with high honors, from the University of Florida, Levin College of Law, where he was inducted into the Order of the Coif and served as editor-in-chief of the Florida Law Review.

Trump nominates Georgia Supreme Court Justice Britt Grant to 11th Circuit

This nomination is for Julie Carnes' seat.  From the AJC:

President Donald Trump on Tuesday will nominate Georgia Supreme Court Justice Britt Grant to fill an upcoming vacancy on the federal appeals court in Atlanta, according to an administration official familiar with the nomination.
If approved by the Senate, Grant, 40, would succeed Judge Julie Carnes, who will become a senior judge in June. She was appointed to the state appellate court bench by Gov. Nathan Deal in January 2017.
Savannah attorney Pat O’Connor, former president of the State Bar of Georgia, said the nomination comes as no surprise to him.
“Through her service on the Georgia Supreme Court, Justice Grant has proven herself to be a bright star, both intellectually and in terms of judicial philosophy,” O’Connor said. “She’s thoughtful, articulate and thorough.”

“All of his comments have involved braggadocio and zero remorse."

That was Judge Robert Scola in sentencing Cocaine Cowboy Mickey Monday to an above-guideline sentence. From Curt Anderson at the AP:

A smuggler who flew loads of drugs for Colombian cartels during Miami’s “cocaine cowboys” era in the 1980s was sentenced to 12 years in prison Monday for using his old talents in a sophisticated auto theft ring.

U.S. District Judge Robert Scola imposed the relatively harsh sentence — more than four years higher than prosecutors recommended — because of the intricacy of the theft scheme, a total loss of about $1.8 million and because 72-year-old Mickey Munday boasted and bragged constantly for years about his cocaine smuggling past.

“All of his comments have involved braggadocio and zero remorse,” Scola said at a hearing.

Munday spent most of the 1990s in prison after pleading guilty to drug smuggling charges involving tons of cocaine from Pablo Escobar’s Medellin cartel and also the Cali cartel during the 1980s. He frequently talked about his exploits in media interviews, social media posts, and in a starring role in the 2006 documentary “Cocaine Cowboys.”

Assistant U.S. Attorney Joshua Rothstein said Munday transferred his abilities to evade law enforcement to the auto theft ring because he couldn’t resist getting back into the criminal game.

“It wasn’t enough to talk about the past. He couldn’t resist the urge to get back in the criminal action,” Rothstein said. “He traded his wings for wheels.”

But at the hearing, Munday said much of what he said over the years was enhanced or fictional and that he was hoping to land a movie deal for his life story’s rights.

“I write about what I know. I combine stories,” he said, adding that he had no arrests after his original release from prison until 2017 for the car theft ring. “I have done everything I could to stay on the straight and narrow.”

Slowwwwwwww pace

The Supreme Court has decided only 18 cases this Term. That's very slow compared to other Terms. Some have said the new dynamics with Justice Gorsuch are causing the slow down. Others have said it's because there are huge and divisive cases, like gerrymandering and cell-site data. Here's a Reuters article about the lag in decisions:

Supreme Court experts expect the justices to issue a larger-than-normal number of 5-4 rulings in the coming months. That would increase the chances of conservative Justice Anthony Kennedy, who sometimes sides with the court’s four liberals in major cases, casting the deciding votes.

“It’s reasonable to suggest there are going to be fewer unanimous decisions and more division,” said Nicole Saharsky, a lawyer who often has argued cases before the court.

Meantime, I love that this guy went to trial over videotaping a local and public meeting, which was held in the secretive federal courthouse (that doesn't allow photography). The locals should not be able to avoid the openness that usually attach to those types of meetings simply by going to a federal courthouse. I hope he appeals.

Kerri Ruttenberg to speak at Federal Bar Association meeting

I usually don't post about local events because there are just too many to keep up with, but this one is worth mentioning. Kerri Ruttenberg, a partner at Jones Day in DC, will be speaking at the local Federal Bar Association's lunch meeting next Wednesday, April 11. She is a wonderful speaker and will be discussing graphics for lawyers. You've seen all of the bad graphics lawyers use these days... Kerri gives a great talk about how to make them better. Sign up here.

In other news, Judge Mark Walker absolutely crushed Rick Scott and Pam Bondi in this order yesterday. It starts out this way:

Rather than comply with the requirements of the United States Constitution, Defendants continue to insist they can do whatever they want with hundreds of thousands of Floridians’ voting rights and absolutely zero standards. They ask this Court to stay its prior orders. ECF No. 163.

No.

Marc Caputo and Matt Dixon of Politico's Playbook summarize the order:

It was a little challenging putting together Florida Playbook because it took extra time to pull the choicest quotes from federal Judge Mark E. Walker's order on Wednesday torching Gov. Rick Scott and Attorney General Pam Bondi's legal arguments as the state defends its "arbitrary" clemency process. It might have been easier to just reprint the entire order. Wrote the judge: "this court does not play games." Indeed. Nor did he pull punches in noting that the Republican politicians' have "personal stakes in shaping the electorate" in the way they restore felons' voting rights. It's a pretty direct shot at Scott as he plans to announce next week whether he'll run for Senate.
DRIPPING WITH SARCASM, Walker said Scott, Bondi and the rest of the clemency board should get to work respecting the First and Fourteenth Amendments by drafting a constitutionally sound clemency scheme by April 26. "Bitter pills are clearly too hard to swallow," Walker snarked, saying they "fall woefully short" in some areas and "regurgitate" arguments that are "unpersuasive ... disingenuous ... astounding" or are "rooted in neither common sense nor reality."
'SCREAM INTO THE WIND' - Walker even compared them to toddlers: "Defendants stamp their feet and wail that 30 days is 'not [a] reasonably calculated' time to create a constitutional system of executive clemency. This Court again declines to act as a fifth Board member. But drafting new rules need not be complicated or time-consuming. Defendants could simply identify those rules that run afoul of the Constitution and rewrite them with specific and neutral standards. Instead, Defendants scream into the wind various questions it might consider in crafting constitutional rules. Answering those questions may be a better use of time."

Justice Sotomayor is fighting for criminal defendants

In two opinions this week, she explained how the Supreme Court was giving short shrift to criminal defendants.  SCOTUSblog has more:

Justice Sonia Sotomayor dissented from today’s summary reversal, in a 15-page opinion joined by Justice Ruth Bader Ginsburg. Sotomayor recounted the facts of the case, positing that if the story “sounds unreasonable, that is because it was. And yet,” she complained, “the Court today insulates that conduct from liability,” “effectively treating qualified immunity as an absolute shield.” In particular, she lamented, the court’s ruling “ultimately rests on a faulty premise”: that the cases on which the 9th Circuit relied “are not identical to this one.” But the Supreme Court, she argued, has never ruled that the “clearly established law” standard is met only when the plaintiff can point to a case with identical facts. “It is enough,” Sotomayor contended, “that governing law places the constitutionality of the officer’s conduct beyond debate” – as Kisela’s was here. But at a minimum, Sotomayor added, there is enough dispute about the facts and the law in Kisela’s case that the court should not have reversed without the benefit of briefing or oral argument on the merits.

The majority opinion may have contained a strong rebuke of the 9th Circuit, but Sotomayor’s dissent concluded with an equally forceful reprimand for her colleagues. She asserted that today’s ruling “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public” that officers “can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Sotomayor had more strong words in her solo dissent from the court’s denial of review in two Florida capital cases. The inmates in the cases, Jesse Guardado and Steven Cozzie, had argued that their death sentences were unconstitutional, but the Supreme Court declined to step in. Sotomayor complained that the Florida Supreme Court had – as it had in two earlier cases – “failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences” after the Supreme Court’s 2016 decision holding that the state’s death-penalty-sentencing scheme violates the Constitution. In a somewhat unusual footnote, Sotomayor quoted from a 19th-century essay by the French author André Gide: “’Everything has been said already; but as no one listens, we must always begin again.’”

Good for her.

Meantime, there is a legal dispute in the 9th Circuit about anal clefts and what bikinis are too small for coffee baristas. From Reason:

So, what part of the butt is the ass crack, really? As a legal matter.

You see, a fight over scantily clad baristas in one Washington State community hinges partly on whether the average person can objectively tell which part of the bottom counts as the "anal cleft" and whether police could (or would) objectively be able to measure whether one is exposed or not.

The city of Everett, Washington, is trying to get rid of its "bikini barista" stands with an ordinance that forces the ladies there to wear more coverage. The city claims that these tiny stands where scantily clad women serve coffee are incubators of prostitution, public lewdness, and crime. They're trying to shut them down by forcing the women to button up.

The stands are fighting back and won an initial injunction against the ordinance's enforcement in December. A U.S. district judge determined that Everett's ordinance was too vague in its description of what needed to be covered and thereby risked arbitrary enforcement issues. And the judge further determined that the law likely violated the First Amendment free expression rights of the women who worked there.

Everett is now fighting back itself against the injunction, submitting a legal brief arguing that the judge erred on both counts. Its appeal calls for the judge to be overruled and the injunction dissolved.

You'll never read a more boring 66-page document about butts. It includes four pages listing all the federal court cases used to bolster its claim that there's no real confusion about what counts as an "anal cleft" and that there's no evidence that the women are actually expressing anything in particular in their clothing choices.

Cert grant for Miami FPD

The grant in Stokeling v. US involves whether a state robbery offense that includes "overcoming victim resistance" as an element is a "violent felony" under the Armed Career Criminal Act.  Here is the 11th Circuit per curium opinion, with a concurrence by Judge Martin.  Congrats to the Federal Public Defender's Office for getting cert in this case. 

There is no better job than clerking for a judge.

To prove the point, here's an essay by a former clerk about her judge, Stephen Reinhardt, who passed away last week.

Of course, there are always exceptions.  See, e.g., this horrible judge (confessing to stealing his former intern's dirty panties).