Today's Scalia vs. Posner review

This story will never end, and for some reason I can't get enough of it.  Justice Scalia is the latest to fire back.  And Above the Law has all the juicy details:

What are your thoughts on the Richard Posner book review?
“I’m not going to get into this whole thing written for a glossy magazine.”
Okay, I will say this. It was misleading of Judge Posner to claim that I used “legislative history” in District of Columbia v. Heller, the landmark Second Amendment case. There’s a difference between considering “legislative history” — a legal term of art referring to the history of the enactment of a given provision, such as committee reports and floor statements and the like — and looking to the history of the time to get an understanding of how terms in a provision were understood.
(For more on this, see the Thomson Reuters interview. Scalia reportedly said, “To say that I used legislative history is simply, to put it bluntly, a lie.”)

He also had lots of other things to say.  Here's one of my favorite topics:

Should Supreme Court arguments be televised?
No. When I first arrived at the Court, I was in favor. I feel like something of a traitor for changing my mind, but now I’m very much opposed. Proponents claim it would educate; in reality, it would just serve to entertain.
“We spend very little of our time on that nonsense [constitutional rulings on hot-button issues like abortion or gay rights]. Most of our time is spent on the Internal Revenue Code, ERISA — incredibly boring stuff that no one can love, and only a lawyer can understand.”
If SCOTUS arguments were to be televised, we’ll just end up with 15-second soundbites that would give the American people a wrong impression about the work of the Court.

If this topic is boring you, go check out the DOJ stats on corruption convictions since 2002.  New Jersey leads the pack. We rank 9th, but in recent years the numbers are much lower than they were early in the 2000s.

Meantime, Rumpole is discussing Ayn Rand and Bruce Springsteen.  It's an interesting read.

Are long appellate opinions a good or bad thing?

I like them, especially compared to the one word PCA that we see.

 But Judge Edmondson isn't convinced, writing this in a concurrence to a 104 page Judge Carnes opinion:

I stand with Judge Carnes about the correct judgment in this appeal: AFFIRM the District Court’s judgment to deny habeas corpus relief to the state prisoner petitioner.  I -- very respectfully -- do not join in Judge Carnes’s erudite opinion.  I stress that it is not because the opinion says something that I am sure is wrong or I am sure is even likely wrong.  I agree with much of the opinion, at least.  But the opinion says a lot and says more than I think is absolutely needed.
In my experience, longish opinions always present a strong possibility of error lurking somewhere in the text. That the opinion writer is a skilled and careful judge does not eliminate the risk. Furthermore, no one wishes to join in an opinion that they do not understand fully. It is hard, time-consuming, painstaking work for the panel's other judges to check long opinions, line by line, cited case by cited case. (Of course, always other cases are awaiting decision and also demand the judges' time and attention.)
***
It seems to me that the incidence of long opinions has been on the rise in the last decade or, at least, more are coming across my desk. I should say that I, broadly speaking, do not agree that the length of an opinion necessarily reflects the thought, labor, and care that has been invested by judges in their endeavor to decide the case correctly. The shorter opinions often reflect the greater study and thought leading up to the ultimate decision. Mark Twain touched on a related idea: "If you want me to give you a two-hour presentation, I am ready today. If you want only a five-minute speech, it will take me two weeks to prepare."

Here's an article about the underlying case, in which Judge Barkett dissented:

The federal appeals court has upheld a death sentence against man who killed a sheriff’s deputy, even though the condemned inmate’s lead lawyer drank a quart of vodka every day during trial.
The 11th U.S. Circuit Court of Appeals in Atlanta, in a 2-1 decision issued Thursday, said that even though Robert Wayne Holsey’s trial lawyers did not do a competent job, their deficient performance did not prejudice the outcome of the trial. Holsey sits on Georgia’s death row for fatally shooting Baldwin County Deputy Will Robinson after an armed robbery of a convenience store in December 1995.
Holsey’s appellate lawyers noted that his lead trial lawyer, Andrew Prince, drank a quart of vodka every night of Holsey’s trial because he was about to be sued and prosecuted for stealing client funds. During Holsey’s appeal, Prince testified that he “probably shouldn’t have been allowed to represent anybody” because of his condition.
In its ruling, the 11th Circuit said the key question was not whether Holsey’s lawyers were ineffective. It was whether their deficient performance prejudiced the outcome to the point there was a reasonable probability Holsey would not have been sentenced to death.
Judge Ed Carnes, writing the majority opinion, said the abundant aggravating factors — such as the fact Holsey killed a deputy to avoid arrest and had a prior armed robbery conviction — outweighed any additional mitigation evidence Holsey’s lawyers could have presented to the jury had they been doing their job.
Judge J.L. Edmondson concurred with the decision, but he indicated it was a close call as to whether the poor performance of Holsey’s lawyers prejudiced the outcome of the trial.
In dissent, Judge Rosemary Barkett said the jury never learned that Holsey was subjected to abuse so severe, frequent and notorious that his neighbors called his childhood home “the torture chamber.” Holsey’s mother beat him with an extension cord, shoes and a broom and would hold his head under the bathtub faucet, Barkett wrote, also citing testimony that the house was infested with roaches and reeked of urine and rotting food.
Had the jury heard more about Holsey’s “horrific child abuse,” Barkett wrote, there is a substantial probability he would not have been sentenced to death.

Ned Davis Award to Judge Kathy Williams

It was a really nice event at the JW Marriott Marquis. Bernie Pastor was installed as the new president, taking over for two-termer Brett Barfield. Brett did an incredible job and Bernie will as well.

The new FPD Michael Caruso introduced Judge Williams. Both showed why they are such good trial lawyers, telling interesting stories including remembering Judge Davis. Pat Davis was also in the house and it was good to see her doing so well.

Would you do 40 months in federal prison for $100 million?

Maybe crime does pay.

Would you do 40 months in federal prison for $100 million
	Yes
	No
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Busy day at the 11th Circuit

Four published opinions already and it's not 2:30 yet.

The most interesting is Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta v. The Florida Priori of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, the Ecumenical Order.

This is the case that Paul Clement argued.  Judge Wilson wrote the opinion and Judge Pryor wrote a partial dissent.  Lots of juicy stuff here including this line:  

The district court attributed this confusion to the “unimpressive” amount of money each group raised for charitable purposes, which led the court to believe that the members of both organizations 'are more interested in dressing up in costumes, conferring titles on each other and playing in a "weird world of princes and knights’ than in performing charitable acts."  During the trial, the judge opined that it was “tragic” that all Dr. Vann had done in her life was study the Knights of Malta and their records. (D.E. 145, 8:1–6.) He also expressed his disbelief that two charitable organizations would spend their time and money on litigation. (D.E. 144, 34:5–7.)
These remarks are wholly inappropriate in the context of a judicial proceeding and a published judicial opinion. Although a judge is not required to check his or her sense of humor at the courthouse door, we must be mindful that the parties rely on the judge to give serious consideration to their claims. Litigants are understandably frustrated when they are subject to the sort of unnecessary belittling commentary about which the parties complain here.

Yet, this wasn't enough for the Court to reassign the case:

We think the district court’s remarks, though offensive to both parties, do not rise to the level of conduct that warrants assignment to a different judge on remand. We are hard-pressed to surmise actual bias in favor of, or against, one party over the other. Moreover, we are confident that, on remand, both parties will be treated with the respect they deserve and that the district court will be able to freshly consider the remanded claims notwithstanding its previously expressed views. And, given the fact-intensive nature of this case, any reassignment would necessarily require duplication of resources expended by the parties and the court. Accordingly, we deny Plaintiff Order’s request for reassignment on remand.