Is it time to withdraw from the Federalist Society?

 Yes, according to George Conway, Michael Luttig, and Barbara Jean Comstock, who wrote this essay in the New York Times.

Why, you ask?

Because it's still beholden to Trump.  So they've started the Society for the Rule of Law Institute -- a competitor to the Federalist Society with no Trump ties.  It is "an organization of conservative lawyers committed to the foundational constitutional princoples we once all agreed upon," including "the primacy of American democracy, the sanctity of the Constitution, and the rule of law.?

From the NY Times:

We were members of the Federalist Society or followed the organization early in our careers. Created in response to left-liberal domination of the courts, it served a principled role, connecting young lawyers with one another and with career opportunities, promoting constitutional scholarship and ultimately providing candidates for the federal bench and Supreme Court.

But the Federalist Society has conspicuously declined to speak out against the constitutional and other legal excesses of Mr. Trump and his administration. Most notably, it has failed to reckon with his effort to overturn the last presidential election and his continued denial that he lost that election. When White House lawyers are inventing cockamamie theories to stop the peaceful transition of power and copping pleas to avoid jail time, it’s clear that we in the legal profession have come to a crisis point.

We are thankful that there were lawyers in the Trump administration who opted to resign or be fired rather But these exceptions were notably few and far between. More alarming is the growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency. The actions of these conservative Republican lawyers are increasingly becoming the new normal. For a group of lawyers sworn to uphold the Constitution, this is an indictment of the nation’s legal profession. Any legal movement that could foment such a constitutional abdication and attract a sufficient number of lawyers willing to advocate its unlawful causes is ripe for a major reckoning.

We must rebuild a conservative legal movement that supports and defends American democracy, the Constitution and the rule of law and that incentivizes and promotes those lawyers who are prepared to do the same. To that end, we have formed a nonprofit organization, the Society for the Rule of Law Institute, to bring sanity back to conservative lawyering and jurisprudence.

There is a need and demand for this new legal movement that the legal profession can readily meet. Pro-democracy, pro-rule-of-law lawyers who populate our law school campuses, law firms and the courts decry what is happening in our profession. They deserve an outlet to productively channel these sentiments.

Or you could just join the American Constitution Society!

Corrine Brown's case goes en banc before the 11th Circuit

 I previously blogged about the fascinating panel decision here.

In the Brown case, the district court excused a juror who said that he was deliberating based on what "[t]he Holy Spirit told [him]," which was that Brown was not guilty on all counts.  Judge Rosenbaum said it was appropriate to excuse the juror because the juror was not praying for guidance but was basing his decision on what was "told" to him by the Holy Spirit.  Visiting Judge Conway joined Judge Rosenbaum.

Judge William Pryor wrote a lengthy dissent, arguing that jurors should be able to rely on their religious beliefs.

Now the case goes en banc.  Here's what I said about the panel opinion at the time:

For what it's worth, I think both opinions get it wrong. I think an acquittal can be based on anything, including one's conscience. Convictions, on the other hand, cannot be based on anything except the evidence beyond a reasonable doubt. So if God tells a juror to acquit, fine. It would be disqualifying, however, for a juror to convict based on some intuition and not the evidence. Jury nullification is permissible to acquit, but not to convict.

In Defense of Joe Biden

That’s my latest piece in The Hill. The intro:

It’s official: The pendulum of #MeToo claims has now swung too far. When a friendly gesture with no sexual intent is labeled a reprehensible act that should be subject to public shaming and even disqualification from public office, it is time that we all recognize that we are starting to lose perspective.

Let’s be clear before I continue: I am not talking about the crass comments by the current President that it’s okay to “grab [women] by the pussy” or inappropriate sexual relations between then-President Clinton and an intern. Those are clearly beyond the pale. But the “allegations” against Joe Biden — that he touched Linda Flores’ shoulders and kissed the back of her head — are very different.

Biden is an affectionate guy, but in a grandfatherly sort of way. He explained: “In my many years on the campaign trail and in public life, I have offered countless handshakes, hugs, expressions of affection” and never intended to disrespect or cause any harm to Flores or anyone else. But Flores has gone so far as to say that Biden’s intent is irrelevant. Kelly Ann Conway has repeated this argument, saying that it does not matter what Biden intended.

Of course Biden’s intent is relevant. It’s the most important question here. That’s why Stephanie Carter, wife of secretary of Defense at the Pentagon, has had to publicly speak out about the picture of her and Biden that is making the rounds again. As Carter made clear, "The Joe Biden in my picture is a close friend helping someone get through a big day, for which I will always be grateful. So, as the sole owner of my story, it is high time that I reclaim it – from strangers, Twitter, the pundits and the late-night hosts."

Please read the whole thing and lemme know your thoughts...

"In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge Cheryl Aleman, and appeared on a rowdy blog"

Sean Conway and the Broward Blog made the front page of Sunday New York Times. Very cool!! (Our prior Conway coverage is here.)

And it's timely -- the article addresses an issue that we have been discussing on the blog recently: how far can lawyers go in criticizing judges?

Here's the intro to the article:

Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days: he blogged about her, saying she was an “Evil, Unfair Witch.”

But Mr. Conway is a lawyer. And unlike millions of other online hotheads, he found himself hauled up before the Florida bar, which in April issued a reprimand and a fine for his intemperate blog post.

Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs, but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.

“When you become an officer of the court, you lose the full ability to criticize the court,” said Michael Downey, who teaches legal ethics at the Washington University law school.

And with thousands of blogs and so many lawyers online, legal ethics experts say that collisions between the freewheeling ways of the Internet and the tight boundaries of legal discourse are inevitable — whether they result in damaged careers or simply raise eyebrows.

Judge Zloch strikes back

Remember Loring Spolter's wild claims that there was a conspiracy with Judge Zloch and the clerk's office? Well, the DBR reports that it didn't go so well for Mr. Spolter:

District Court Judge William Zloch is considering suspending a Fort Lauderdale employment attorney from practicing in South Florida federal courts for criticizing him in an interview with the Daily Business Review. Fort Lauderdale lawyer Loring Spolter said the former chief judge allows his religious and conservative views to color his decisions. He also commissioned a statistical analysis that Spolter said showed it was impossible for so many of his cases to be randomly assigned to Zloch, only to be dismissed. Cases are assigned in the Southern District through a somewhat weighted wheel system that takes into account where cases are filed and where the action occurred.

***

Zloch asked U.S. Magistrate Judge Robin Rosenbaum to review the matter and make recommendations. She issued a 96-page report July 10, finding Spolter’s accusations were specious after taking testimony on case assignments from Steven Larimore, the district’s clerk of court. “Although a lawyer should be lauded for having the courage to take a stand against any truly biased activity on the part of a court, Mr. Spolter’s actions do not fall into that category,” Rosenbaum wrote. “These statements exceed the bounds of properly raising grounds for recusal or disqualification and instead constitute a personal attack on the presiding judge.” Zloch adopted Rosenbaum’s findings and held a hearing Aug. 20 on whether to sanction Spolter for filing the motions in bad faith. Zloch repeatedly invoked the interview with DBR in the hearing, a transcript shows. “I would like to know how the federal judiciary, the Southern District, gets back its good name after that article,” the judge said. Zloch said he is considering suspending Spolter from practicing in South Florida federal courts for five years. He also is considering a fine, court costs and referring Spolter to The Florida Bar for discipline. The judge told Spolter he could mitigate the sanctions if the lawyer bought a full-page, court-approved advertisement in the Review apologizing for his previous position.

Things that struck me about from the article, which is worth reading in its entirety:

• 96 pages? That's a long R&R! Judge Marcus would be proud of his former clerk.
• What happens if the DBR gives Spolter the ad for free?
• Why can't Spolter keep his mouth shut? (From the article: Zloch said Spolter’s statistical expert recanted his position at Rosenbaum’s hearing. The statistician had said it was nearly impossible for Spolter’s cases to randomly end up with Zloch only to be dismissed. That’s when Spolter stood up and said the judge was wrong. “The expert just called me up last week and spoke to me about this case again, and he said to me that he stood by his testimony,” Spolter said. Zloch retorted to Reinhardt, “He apparently still maintains his position.”) Painful. SFLawyers has a funny post about this.
• Is Judge Zloch the right judge to be deciding the sanctions? Or should some other judge do it?
• Should lawyers be permitted to criticize judges without fear of being reprimanded? (More from the DBR: The Spolter case raises the issue of the free speech rights of attorneys who criticize a sitting judge. Last year, The Florida Bar reprimanded Fort Lauderdale attorney Sean Conway for calling Broward Circuit Judge Cheryl Aleman an “evil, unfair witch” in a blog post that appeared around Halloween 2006. Conway maintained his statements were protected opinions but stipulated to the Bar’s disciplinary decision.)
  
  

The Conway briefs are in

Our previous coverage of Sean Conway's bar issue and proposed settlement is here (He agreed to settle his bar case for calling Judge Aleman on the Broward Blog an "evil, unfair witch" for a public reprimand). The Florida Supreme Court didn't accept the settlement with the bar, asking if Conway's speech was protected by the First Amendment.

Courtesy of JAABBlog, the briefs are in:
CONWAY RESPONSE BAR RESPONSE ACLU AMICUS BRIEF

The one worth reading is the ACLU brief.

Florida Supreme Court steps in on Conway settlement

We've covered Sean Conway's bar issue and proposed settlement before (He agreed to settle his bar case for calling Judge Aleman on the Broward Blog an "evil, unfair witch" for a public reprimand).

Apparently, the Florida Supreme Court didn't accept the settlement with the bar, asking if Conway's speech was protected by the First Amendment. According to this DBR article:

The Florida Supreme Court is questioning a proposed settlement brokered by The Florida Bar in a disciplinary case against a Fort Lauderdale criminal defense attorney for his critical comments about a judge. The court asked for more information from The Bar and attorney Sean Conway on Monday. It issued an order directing them “to show cause” by July 14 whether “any of the respondent’s comments should be considered protected speech under the First Amendment.”

I hope the Florida Supreme Court does the right thing in the end and dismisses the case brought by the Florida Bar. Kudos to the Court for not rubber-stamping this deal.

Correct result?

Sean Conway has agreed to settle his bar case for calling Judge Aleman on the Broward Blog an "evil, unfair witch" for a public reprimand, the Sun-Sentinel has reported here (hat tip Rumpole). When the case was first brought, Fred Haddad, Conway's lawyer, said "If the state court is not sensible enough to dismiss this piece of shit, it will end up in federal court."

And Fred is not happy that Conway settled: "Resolving the case was not my position, and it was not the position that I ever took," Haddad said Tuesday. "However, the lawyer does not make all the decisions." Haddad had said in December that Conway's blog posting was protected speech and that Bar rules restricting attorneys' criticism of judges was overly broad, vague and unconstitutional.

What say you dear readers? Is this the right result? A public reprimand for speaking your mind on a blog? I agree with Haddad on this issue, of course.

Also I reproduce here from the comments section of our last post:

Dear Former Students of Swan,

As a former student and long time friend of Alan Swan, I will be speaking at his memorial service on Saturday (Plymouth Congregational Church in the Grove, 11:30). If you have a good Professor Swan story, I would love to hear from you today or tomorrow. Please feel free to respond to mbarzee@jud11.flcourts.org.
Thank you.
Mary Barzee Flores

"If the state court is not sensible enough to dismiss this piece of shit, it will end up in federal court."

That was Fred Haddad about the Florida Bar complaint against attorney Sean Conway for his comments on a blog about Judge Cheryl Aleman.

Kidan plea

This one was pretty obvious, but here's the news anyway -- Adam Kidan pleaded guilty to fraud and is likely to be a cooperating witness in a number of different cases, including against Jack Abramoff. Kidan's lawyer is Joseph Conway. Prosecutors are Lawrence LaVecchio and Paul Schwartz. Judge Huck is presiding over the case, which is still set for trial (for Abramoff -- represented by Neal Sonnett) in January. Coverage here and here.