Stormy weather

The Herald got all artsy today with a big picture of a rainbow above the fold and above the articles in the metro section. Lots of people captured the double rainbow. I like this one:

The kids are out of school and camp doesn't start till next week... making this the second quietest week of the year, right after the Christmas-New Year week. Other than Judge Seitz (with Dore Louis), any other trials starting?

Twitter?

I've resisted Twitter for a while now, and am still not sure why I just signed up for it. But now that I have, let's see how it goes. Click here to follow. (And yes, Judge Moreno, I know -- no twittering from inside the courtroom).

Jeff Sloman acting U.S. Attorney

It was Alex Acosta's last day on Friday. He's off to FIU. Acting U.S. Attorney: Jeff Sloman (he's pictured in white next to Bernie Kosar). Jeff has put his name in with a bunch of other people for the permanent slot. Interviews are next month.

JNC interviews are open to the public

If you wanna go watch, here's the info:

July 15, 2009 at 9 a.m.
U.S. District Judge, Southern District of Florida
Judges Conference Room, 14th Floor
Wilkie D. Ferguson, Jr. U.S. Courthouse
400 North Miami Avenue
Miami, Florida

July 16, 2009 at 9 a.m.
U.S. Attorney
same place

July 17, 2009 at 9 a.m.
U.S. Marshal
same place

All Sotomayor all the time

Via ScotusBlog:

Judge Sotomayor’s completed Senate Judiciary questionnaire is available for download here.
The transcript of her confirmation hearing for the Second Circuit is available here and her Judiciary questionnaire from that hearing is available in two parts: here and here.
The transcript of her confirmation hearing for the Southern District of New York is available here and her Judiciary questionnaire from that hearing is available in two parts:here and here.

"We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment..."

Whether or not you agree with Judge Carnes, he's an excellent writer and a lot of fun to read. Check out his opinion today in Friends of the Everglades v. So. Fla. Water Mgmt. Hat Tip Curt Anderson. The text below in italics is Carnes'.

Here's the issue: This appeal turns on whether the transfer of a pollutant from one navigable
body of water to another is a “discharge of a pollutant” within the meaning of the
Clean Water Act, 33 U.S.C. § 1362(12).

No way to turn that into a fun opinion to read, right? Wrong. Right up front he's quoting a country singer: “But progress came and took its toll, and in the name of flood control, they made their plans and they drained the land.” John Anderson, “Seminole Wind,” on Seminole Wind (BMG Records 1992).

How's the water in those canals around the Lake? The area south of Lake Okeechobee’s shoreline was designated the Everglades Agricultural Area. The Corps dug canals there to collect rainwater and runoff from the sugar fields and the surrounding industrial and residential areas. Not surprisingly, those canals contain a loathsome concoction of chemical contaminants including nitrogen, phosphorous, and un-ionized ammonia.

Not the impression you want to make at oral argument: We begin with the cross-appeal, which contests the dismissal of the Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all.

The supplement filed after oral argument wasn't much better. A "sic" and getting mocked for using the third person: Two-and-a-half weeks after oral argument, however, we received a supplemental letter from attorney Nutt in which, referring to himself in the third person, he stated: “The Executive Director’s counsel did not have an opportunity to address the Court’s question, posed at the very end, whether the remedies available against the Executive Director through the fiction of Young are the same as the remedies available as [sic] against the District were it not immune. They are not.” The belated letter is not helpful.

More fun stuff: To decide questions that do not matter to the disposition of a case is to separate Lady Justice’s scales from her sword. That we will not do. Cf. George E. Allen, The Law as a Way of Life, 27 (1969) (“The scales of justice without the sword is the impotence of law.”).

What's an opinion if there aren't some baseball references: The unitary waters theory has a low batting average. In fact, it has struck out in every court of appeals where it has come up to the plate. … The Court has not, however, called the theory out yet. … The Friends of the Everglades, arguing against ambiguity, pitch us other decisions. … Deciding how best to construe statutory language is not the same thing as deciding whether a particular construction is within the ballpark of reasonableness. … None of the decisions the parties have thrown our way helps either side much.

Have you lost your marbles yet? Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting “any addition of any marbles to buckets by any person.” A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marblemover “add[ed] any marbles to buckets”? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, we cannot say that either side is unreasonable.

Dore Louis is tall.

Here are the pictures from the FACDL banquet which took place a few weeks back, where Judge Hoeveler was honored. (So were the Liberty City lawyers and Ben Brummer). Hector Flores is the new president. And at the link, you'll see pictures of Judges Hoeveler and Graham, Magistrates Garber and O'Sullivan, former Florida Supreme Court Justice Kogan, FPD Kathy Williams and soon-to-be former USA Alex Acosta. And Dore Louis, who is very tall.

There is only one good thing about the summer:

The traffic.

Okay, maybe it's not that good.

Just saying.