SDFLA nominees perform well before the Senate Judiciary Committee

 Here are their opening statements.  Really well done.  I thought each of the nominees gave personal and touching openings.  And they were all very well spoken.

NOMINEE: Jacqueline Becerra to the Southern District of Florida

Judge Becerra’s judicial and litigation experience — both as a federal prosecutor and in private practice — has prepared her to serve with distinction. pic.twitter.com/VfmtQVEO4e

— Senate Judiciary Committee (@JudiciaryDems) November 29, 2023

NOMINEE: Melissa Damian to the Southern District of Florida

As a litigator, Judge Damian tried more than 30 cases to verdict.

Her experience in the courtroom in both civil and criminal matters has prepared her to serve on the federal bench. pic.twitter.com/v3NLDmGkbG

— Senate Judiciary Committee (@JudiciaryDems) November 29, 2023

NOMINEE: David Leibowitz to the Southern District of Florida

Mr. Leibowitz is an accomplished litigator who has prosecuted a wide range of federal crimes, from insider trading to terrorism.

He has strong ties to this district, and his experience will be an asset. pic.twitter.com/FNM6nAsCSp

— Senate Judiciary Committee (@JudiciaryDems) November 29, 2023

SDFLA Senate Judiciary Hearing this morning

 Good luck to Jackie Becerra, Melissa Damian, and David Leibowitz who will be appearing before the Senate Judiciary Committee at 10am this morning.

You can watch it here.

AFPD Andrew Adler argues 3rd case before SCOTUS

 The case is Brown v. U.S. and the issue is: Whether the "serious drug offense" definition in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect at the time of the federal firearm offense or the federal drug schedules that were in effect at the time of the prior state drug offense.

Bloomberg has a nice article about Adler, his office (including support from Michael Caruso) and trend of FPDs arguing more cases:

Andrew Adler will make his third trip to the US Supreme Court lectern on Monday as one of a handful of federal public defenders to argue more than once.

Federal defenders from across the nation have argued at least one case every term except for one since at least 2000, according to Adler. Most often, it’s their first and only time in front of the justices.

With the Supreme Court hearing fewer and fewer cases each term, the criminal defense attorneys—like most first-time advocates—face intense pressure from elite law firms to turn over their Supreme Court cases to experienced advocates.

In response to that pressure, and to criticism from the justices, federal defenders have developed support systems to help prepare for a successful argument—both of which Adler took advantage of again this time around.

The Defender Supreme Court Resource & Assistance Panel, for example, partners first time advocates with federal defenders with high court experience.

The goal is to provide resources to offices that want to argue their cases themselves, according to Fran Pratt, an assistant federal public defender in the Eastern District of Virginia who co-chairs the group.

“I think the work product and advocacy has improved immeasurably, the best of both worlds,” said Michael Caruso, the federal public defender for the Southern District of Florida, which is based in Miami.

 

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!

Congress and Football

 

By John R. Byrne

Thanksgiving is one of the best times to watch football. And we have a Dolphins game on Black Friday. If you're racking your brain trying to remember the last time the NFL played on a Friday, there's a reason for that. They don't do it often. And it's because of a law! From the Herald:

"The NFL traditionally doesn’t play Friday games in part because of Congress’ Sports Broadcasting Act. A 1966 amendment withdrew antitrust immunity for any pro football telecast if a high school or college football game is played within 75 miles of the station airing the NFL game."

Since 1978, the NFL has played only eight Friday games. So, enjoy this rare opportunity for Friday NFL football with your home team.

Human lawyers sue robot lawyers — and lose!

 As we all recover from post-it note gate during this Thanksgiving holiday week, this story caught my eye. And I love it. A bunch of lawyers don’t like AI and sued, saying it was involved in the unauthorized practice of law. The robot filed motion to dismiss and won! However, the judge did give leave to amend. Here’s the Reuters story. 

A federal judge on Friday agreed to dismiss, for now, a lawsuit by a small Illinois law firm that accused artificial intelligence company DoNotPay of engaging in the unauthorized practice of law.

Chief U.S. District Judge Nancy Rosenstengel in East St. Louis, Illinois said in the decision that law firm MillerKing's claims are not sufficient to give it legal standing to sue DoNotPay in federal court.

"This case pits real lawyers against a robot lawyer," Rosenstengel said, finding that the real lawyers had not shown how they were harmed.

MillerKing in March sued DoNotPay, which says on its website that it uses artificial intelligence to help consumers "fight big corporations, protect your privacy, find hidden money, and beat bureaucracy."

MillerKing, which has six attorneys who work in areas including personal injury, wrongful death and family law, claimed DoNotPay advertises and provides legal services without having a license to practice law.

Howe Comes to the Southern District

 

By John R. Byrne

Amy Howe, of SCOTUSblog and Howe on the Court blog fame, once again brought her talents to the Southern District of Florida yesterday. She speaks every fall to the South Florida Chapter of the FBA and it's always a great program. She talked about the current term, which seems to have fewer controversial cases this year. Still, big decisions coming on redistricting and the Chevron doctrine. Only Judge Huck managed to stump her during the Q & A portion of the program, asking her to identify the most humorous or under-the-radar case on the docket (she says the reporters usually have one, but drew a blank). Definitely worth seeing her when she comes back next fall.

Preet Bharara calls for prosecutors to announce when an investigation closes

This is a no-brainer in my opinion, but one that Preet himself did not do as a U.S. Attorney in New York.  From his piece in the New York Times:

Prosecutors formally advised lawyers for former Vice President Mike Pence this past June that he would not be charged for retaining classified materials after leaving office. I expect that the special counsel Robert Hur will similarly soon announce that President Biden will not face charges for his own handling of classified documents. The merits of those determinations, no less than the one to indict Donald Trump for hoarding such documents in Mar-a-Lago’s bathrooms and ballrooms, are properly debated.

Criminal investigations into holders of high office invariably raise questions about equal treatment and equal justice under the law. Is there, people ask, a double standard?

Well, there is one species of double standard and special treatment that reveals an overlooked unfairness in our justice system: It is generally only the famous and the powerful who get the courtesy of closure, who get the benefit of formal notice that the case against them is over. In too many cases and for no good reason, people never know when they are out of jeopardy.

Outside of the most high-profile cases, a prosecutor’s decision to close an investigation remains a secret — from the public, the victim, and even the target of the inquiry.

For targets who have never appeared in the pages of this paper, that means there is no news conference at the Department of Justice or letter to their lawyers to dispel the cloud of uncertainty and fear that accompanies the threat of prosecution. There is only silence. Many involved in perpetuating this purgatory — including the prosecutors themselves, as I know from my time as the United States attorney for the Southern District of New York — understand it serves no real purpose. Yet routine nondisclosure continues unquestioned.

It can, and should, stop.