Judge Jordan can't wait to see Lincoln

From his opinion yesterday: 

Following the 1860 election, President Abraham Lincoln chose a cabinet “comprised of enemies and opponents,” including three men who had been his “chief Case: 11-13117 Date Filed: 10/18/2012 Page: 1 of 29 rivals for the Republican nomination,” because they “‘were the strongest men in the party’” and he “‘had no right to deprive the country of their services.’” DORIS KEARNS GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF ABRAHAM LINCOLN 319 (2005). When she was elected in 2008 as superior court clerk of Lumpkin County, Georgia, Rita Harkins did not emulate President Lincoln; in her first official act as clerk, Ms. Harkins dismissed her co-worker and former political rival, Sarah Jane Underwood, whom she had defeated in the Republican primary. 

The issue we address is whether this firing violated Ms. Underwood’s First Amendment rights. In light of our precedent, we conclude, as did the district court, that it did not.

In other news, do you think that a prosecutor should be able to use a booking photo in closing argument with the words GUILTY GUILTY GUILTY superimposed on top?  The Washington State Supreme Court said no in a 5-4 opinion. Via The News Tribune:


The Washington State Supreme Court has overturned four felony convictions of a Pierce County man, saying a deputy prosecutor violated the defendant’s right to a fair trial by superimposing the words, “guilty, guilty, guilty,” over the man’s photo during a PowerPoint presentation in closing arguments.
The state’s high court, on a 5-4 vote, sent Edward Michael Glasmann’s case back to Superior Court for a new trial.
“The prosecutor’s misconduct was flagrant, ill intentioned and we cannot conclude with any confidence that it did not have an effect on the outcome of the trial,” Chief Justice Barbara Madsen wrote for the majority in an opinion released Thursday.
Prosecutor Mark Lindquist said he thought the majority made a bad call.
“The majority opinion is correct in recognizing that prosecutors are quasi-judicial figures,” he said. “We have a duty to seek justice and be fully professional. The opinion takes a strange turn, though, in finding reversible misconduct because a former deputy prosecutor superimposed the word ‘guilty’ on a PowerPoint slide with a booking photo.
“This was unnecessarily melodramatic, but did not affect the outcome.”

Read more here: http://www.thenewstribune.com/2012/10/18/2337016/pierce-man-gets-a-new-trial-over.html#storylink=cpy

Debates

This is pretty funny from Family Guy:

BREAKING -- MAGISTRATE SHORT LIST

The Magistrate Committee has cut the list to five names and now it's up to the judges to pick your next Ft. Lauderdale magistrate.  Here's the list:

Bruce Brown
Patrick Hunt
Corey Steinberg
Alicia Valle
Garth Yearick

Three AUSAs, one AFPD, and one private practitioner.  Good luck to the five.
(And thanks to my tipsters.)

Shameful

Bloomberg has a story today about our country's incarceration rates.  It's jaw-dropping.  We jail more people than any other country... by a lot.  Out of every 100,000 citizens, we jail 730.  To give some perspective, Cuba and Russia are right around 500.  England is about 150.  And how about prisons:

“The model is, if you build it they will come,” said Daniel D’Amico, a professor of economics at Loyola University New Orleans. “Because we have all these prisons and all of these other resources funneled into our criminal justice system, we have this ability to enforce things that would otherwise be unenforceable.”
“That includes the drug war, but it’s also including everything from the Martha Stewart types to immigration policies,” D’Amico said. “The scope of things that are now criminal in corporate law is exponentially higher than it was merely twenty years ago.”
The U.S. also leads the world in the number of prisons in operation at 4,575, more than four times the number of second- place Russia at 1,029. U.S. states spent $52 billion to construct and operate those prisons in 2011, more than quadruple the $12 billion spent in 1987, according to data from the Pew Center on the States. 

Just insane.  We have over 2.2 million people in prison.  That's about the size of Houston.  I hope there is a question about this at the debate tonight.

"The result is that we will end up with a bench populated only by former state court judges and lawyers from government or academia."

That's David Mandel in this article by John Pacenti about the Federal JNC and the process of picking federal judges.  He makes a point.  None of the the last three judges appointed (or the current one being vetted) come from private practice.  Do you think this is a problem?

Is it a problem that private practitioners are not applying to the federal bench?
	Yes, we need judges from all different areas
	Yes, we need judges who remember what it's like to run a practice
	Yes, government lawyers and state judges get "Robe-itis" too easily
	No, government lawyers and state judges are dedicated public servants and are extremely qualified
	No, if private practitioners want to apply, there is nothing stopping them
pollcode.com free polls

Here's the intro from the article:

What do Supreme Court Chief Justice John Roberts, Chief U.S. District Judge Federico Moreno and former U.S. Attorney Roberto Martinez have in common? They were all political footballs when their nominations were caught between the administrations of President George H.W. Bush and President Bill Clinton. The nominations of Roberts to U.S. Court of Appeals for the D.C. Circuit and Moreno to the Eleventh Circuit expired, and Martinez found himself out of a job at the U.S. attorney’s office in Miami. The lapsed nominations were far from career killers. Roberts is now, of course, the head of the U.S. Supreme Court, Moreno runs federal courts in the Southern District of Florida, and Martinez went into private practice where he has built a reputation as one of the most respected legal minds in South Florida. But becoming a federal judge, U.S. attorney or federal marshal can be tricky and political. And it all starts with the Federal Judicial Nominating Commission. Martinez was joined by fellow former U.S. Attorney Kendall Coffey and Tew Cardenas partner Thomas Schultz, a former JNC chairman, for a panel discussion titled “Narrowing the Field” on the commission at a meeting of the South Florida chapter of the Federal Bar Association. They said politics plays a big role in the nominating process but not at the commission level. Martinez, Schultz and Coffey have held leadership positions on the commission at one time or another. Coffey currently chairs the 21-member Southern District Conference. The panel’s consensus was that Florida led the way nationally in trying to take politics out of the task of narrowing the field of applicants for Florida’s senators to consider. Each conference recommends up to four applicants to the senators, who make a recommendation to the White House.