Monday morning

1.  Justice Scalia is still making the circuit.  His Fox News appearance was entertaining.  Here's one exchange, as summarized by Ann Althouse:
Wallace quoted [Judge] Posner's saying that part of Scalia's dissenting opinion in the Arizona immigration case had "the air of a campaign speech." Scalia went comically snobby:

SCALIA: He is a court of the appeals judge, isn't he?

WALLACE: Yes.

SCALIA: He doesn't sit in judgment of my opinions as far as I'm concerned.

WALLACE: You sit in judgment of his opinion?

SCALIA: That's what happens.

Wallace commented that Scalia knew how to "push people's buttons," and Scalia said "It's fun to push the buttons." Wallace pursued him — "Is it?... Why" — and Scalia basically says Posner started it: "When Richard Posner comes out with a statement like that, I should fire back a statement equally provocative."

2.  SCOTUSblog covers the dog-sniffing cases coming up:

Police forces across the country have found that dogs, which have a highly developed sense of smell, can be trained to detect specific odors, such as scents from a human body, or the odors given off by illegal drugs. This makes police dogs highly valued partners to police as they search for missing persons, or for illegal narcotics. When a trained dog’s capacity to detect a certain odor has been formally certified by an expert, the evidence that police gain from dog searches frequently is permitted in criminal cases in court. But the Supreme Court several times has had to rule on whether a search by a trained police dog is the kind of inspection that must be done so that it does not violate the constitutional right to privacy of the individual targeted. The Court will give further constitutional guidance in two new cases, both originating in Florida.

3.  BLT is discussing the Senate showdown over judicial nominees:

A showdown on the confirmation vote of a federal appellate judicial nominee, scheduled for Monday, could be a pivotal moment for how many appeals court bench spots the Senate will fill during the rest of this year.
Majority Leader Sen. Harry Reid (D-Nev.) is forcing a vote Monday afternoon on Robert Bacharach, of Oklahoma, for the U.S. Court of Appeals for the Tenth Circuit, a nominee considered to be highly qualified and noncontroversial. The move is a direct challenge to Republicans who have leaked plans that they will block all circuit court judges for the rest of the presidential election year.
But it is also Reid's only option for moving forward on the circuit court nominees this congressional session, as Republicans cite a loosely defined Senate tradition of backing off from filling circuit court seats in the waning months of a president's term, dubbed "The Thurmond Rule."

If Reid succeeds in getting enough Republicans votes to overcome the filibuster, it could pave the way for other noncontroversial circuit court nominees awaiting confirmation this year, including William Kayatta, Jr., of Maine for the U.S. Court of Appeals for the First Circuit, and Richard Taranto, nominated to the Federal Circuit.
If Reid does not succeed, it would suggest Minority Leader Mitch McConnell (R-Ky.) has party members in line to solidify a freeze on any circuit court confirmations until next Congress, nomination watchers say.

 

4.  Rumpole is all over the registry controversy in state court.  I don't like the posting of attorneys' names and numbers though.
5.  Roy Black has been a busy blogger lately.  Good stuff, especially his stuff on cross-x.

It's Scalia all the time

He's making the rounds for his new book, and he's talking *a lot* about the Court.

• The AP: 

The justice refused to discuss recent reports from CBS News that Chief Justice John Roberts changed his vote in the health care case and provoked hard feelings among his fellow conservatives who thought Roberts would side with them to strike down the law.

"I was out of the country for who struck whom. It's terrible stuff. I'm not going to play any part in the recounting of it," Scalia said during a 40-minute interview in a private sitting room at the court.

President Ronald Reagan named the 76-year-old Scalia to the high court in 1986, making him the longest-serving justice.

Scalia is giving a round of media interviews to promote the new book "Reading Law: The Interpretation of Legal Texts" that he co-authored with legal scholar Bryan Garner.

He went on to say that disagreement over the tough legal issues the court must decide is a part of the job. "I disagree with my colleagues now and then. It happens all the time. If you can't do that without taking it personally and getting sore and picking up your ball and going home, you ought to find another job."

• BLT:

Asked if there is too much money in politics, Scalia said no, arguing that as in other First Amendment contexts, more speech is better."I forget what the figures are, but I think we spend less on our presidential campaigns each year, when there's a presidential election, than the country spends on cosmetics," Scalia said.
***
Lamb asked Scalia about the controversy following Scalia's dissent last month in the Arizona immigration case, in which Scalia cited recent statements by President Barack Obama on changes in immigration policy. Critics said that by doing so, Scalia was making more of a political than a legal statement. Washington Post columnist E.J. Dionne called on Scalia to resign. It seemed from the interview that Scalia was unaware of Dionne's attack, and he said using material from outside the record of a case is not uncommon.
"I cited the president's statement, which seemed to me perfectly fair," said Scalia. "I did not say the president's statement was wrong. I just said that what the Attorney General had told us, concerning enforcement priorities, was simply, as the public record shows, not -- not the sole problem."

• CSPAN, with a bunch of clips including this one on cameras in the Court:

• ABA, with this audio clip.

And if that's too much Scalia, then this is a little closer to home: a blog post about vacancies in the 11th Circuit.  From the intro:

This month, Eleventh Circuit Judge J. L. Edmondson assumes senior status after a quarter century of valuable service. His decision leaves the bench with 13 vacancies in the 179 appeals court judgeships and the Eleventh Circuit with two in twelve. These openings, which comprise more than seven percent of the judgeships nationwide and 17 percent in the Eleventh Circuit erode the delivery of justice. Therefore, President Barack Obama must swiftly nominate, and the Senate promptly confirm, appellate judges, so that the vacancies will be filled systemwide and in the Eleventh Circuit.

President Obama has vigorously consulted by seeking the advice of Republican and Democratic senators where openings materialized before official nominations. Obama has proffered nominees of balanced temperament, who are smart, ethical, hard working and independent, and are diverse vis-à-vis ethnicity, gender and ideology. For instance, he consulted Georgia Republican Senators Saxby Chambliss and Johnny Isakson, who enthusiastically supported Eleventh Circuit Judge Beverly Martin, and she won confirmation 97-0.
Senator Patrick Leahy (D-Vt.), the Senate Judiciary Committee chair, has quickly conducted hearings and votes, sending nominees to the floor where numbers have languished over months. For example, on June 29, the Senate recessed without considering any of 17 well qualified appellate and district nominees whom the committee approved because the GOP refused to vote on them.

Bad week for ICE

First, it was the Chief Anthony Mangione, who pleaded guilty to child porn charges.  And yesterday, officer Paulo Morales pleaded to groping women at the airport.  Via NBC:

A U.S. Customs and Border Protection Officer admitted Tuesday in federal court he sexually assaulted three women in his custody.

Paulo Morales, 47, pleaded guilty to three civil rights offenses for sexually groping the women, the U.S. Department of Justice said in a release.

Morales, who worked as an officer with U.S. Customs and Border Protection at Miami International Airport, said in January 2011 he groped the breasts of three women that were in his custody without their consent.

Pretty lazy reporting though:  It was not immediately known who was representing Morales.

Translation:  We just reprinted the U.S. Attorney's Press Release and didn't pull the docket from Pacer to check who Morales' lawyer was or whether he had a comment on the case.

 UPDATE -- feisty comments to this post...  so let me answer some of the questions: Morales is represented by Jude Faccidomo and the government is represented by William White and Henry Leventis.  Each of the three counts Morales pleaded to has a one year max, so his exposure is 3 years.

11th Circuit today

The courtroom on the 12th floor of the King building was packed with law clerks and other observers this morning because Paul Clement was in the house to argue whether religious symbols can be trademarked: Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta, Appellant v. Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order (docket).

The panel was Judges Wilson, Pryor, and Martin.

Cool stuff. 

Others appellate studs in the courtroom -- Elliot Scherker who argued a civil case; Paul Rashkind from the PD's office; Anne Schultz from the USAO; and rising AFPD appellate star Tracy Dreispul. 

And a special for you appellate geeks this morning -- the Green Bag has announced a new bobblehead for Justice Ginsburg.

Gene Stearns wins Bank Atlantic case in 11th Circuit

Here's the 11th Circuit opinion, affirming Judge Ungaro's decision to toss the jury verdict (prior coverage here).

Big win for Stearns Weaver-- Gene Stearns, Adam Schachter, Cecilia Simmons, Grey Mead, and Andrea Nathan.

From Judge Tjoflat's conclusion:

As Bancorp acknowledged in several public SEC filings during the class period, BankAtlantic’s assets were concentrated in loans tied to Florida real estate. As a result, BankAtlantic and Bancorp were particularly susceptible to any deterioration in the Florida real estate market, in addition to any national developments. To support a finding that Bancorp’s misstatements were a substantial factor in bringing about its  losses,therefore, State-Boston had to present evidence that would give a jury some indication, however rough, of how much of the decline in Bancorp’s stock price resulted not from the fraud but from the general downturn in the Florida real estate
market—the risk of which Bancorp is not alleged to have concealed. ... None of its evidence excluded the possibility that class members’ losses resulted not from anything specific about BankAtlantic’s commercial real estate portfolio that Bancorp hid from the public, but from market forces that it had warned of—and that would likely have caused significant losses for an investor in any bank with a significant credit portfolio in commercial real estate in Florida in 2007. Bancorp is therefore entitled to judgment as a matter of law.

Monday morning

Seinfeld has this new web-only TV show.  I like.

SFL is covering the Emmanuel Roy case before Judge Turnoff and this letter.  SFL highlights this line:  "I trust that the court will not conclude that I have decided to stump my nose at it, for any party who does so does it as his own peril."  Too funny.

And here's the Herald interviewing Ervin Gonzalez: 

Q. What was your first job?
I worked as a bag boy and stock man at Winn Dixie while in High School at LaSalle high.
Q. What advice would you give to today’s law students?
Find and pursue your passion.
Q. What’s the last book you read.
“The last Boy,” a biography about Mickey Mantle.

The 11th Circuit is in town, and I have an argument tomorrow morning, so I'll be off-line until after that...

Read more here: http://www.miamiherald.com/2012/07/23/v-fullstory/2907544/miami-lawyer-ervin-gonzalez-tackles.html#storylink=cpy

Ex-Ice Chief Anthony Mangione pleads guilty

And he was immediately taken into custody.  He's looking at a minimum of 5 and max of 20 under his plea deal. Judge Marra is his judge.

 From the Sun-Sentinel:

The former leader ofU.S. Immigration and Customs Enforcementin South Florida has gone from spearheading the local fight against child pornography to facing at least five years in prison for transmitting sexually explicit images of children.
Anthony V. Mangione, 51, pleaded guilty Friday morning to a child pornography charge in the shocking case against the former ICE chief who once oversaw investigations of countless predators who exploited children. The 27-year law enforcement veteran was brought down the same way as many of those other defendants: an Internet provider flagged files being sent from Mangione's email account and alerted authorities.

***
Federal prosecutors said Mangione transmitted at least 15 images of children between the ages of 3 and 15 years old with their genitals exposed.
According toBroward Sheriff's Officesearch warrants, his suspicious Internet activity dated back to 2003 with Mangione using a multitude of online screen names in recent years, including thismomspanks33 and PastorRobertM.
Mangione had no visible supporters in the courtroom Friday morning. He arrived at the West Palm Beach federal courthouse with his attorney, David Howard.
He answered U.S. Magistrate Judge James Hopkins' questions in a clear, steady voice. After the hearing, he took off his suit jacket, tie and belt, and held his hands out to be handcuffed by two U.S. marshals.

Scalia vs. Zimmerman

Piers Morgan had Justice Scalia on last night and Hannity landed George Zimmerman. Must see TV for law nerds!

Scalia had lots of interesting things to say, and I liked how Morgan pushed him a bit.  Scalia said he is most proud that the Court doesn't really cite legislative history anymore and that he has helped move the Court to focus on just the text of the statute or Constitution.  Yet earlier in the interview, he said that he frequently reads the Federalist Papers to see what the Framers intended.  I'm not sure why the Federalist Papers are an okay source for intent, but legislative history is not...

Anyway, here is one clip from the interview:



And here is the NY Times coverage of the interview:

Asked by CNN’s Piers Morgan whether he and Chief Justice Roberts “have had a parting of the ways, gone from best buddies to warring enemies,” Justice Scalia first ducked the question. “Who told you that?” he asked. Mr. Morgan cited news reports, prompting Justice Scalia to respond: “You should not believe what you read about the court in the newspapers. It’s either been made up or been given to the newspapers by somebody who’s violating a confidence, which means that person is not reliable.” After protesting that he would not talk about internal matters, Justice Scalia relented. “No, I haven’t had a falling out with Justice Roberts,” he said. Asked whether there had been loud words or slammed doors, he said, “No, no, nothing like that.” More generally, Justice Scalia said his colleagues had good personal relationships even as they disagreed on legal matters. That is consistent with reports from other justices. “There are clashes on legal questions but not personally,” he said. “The press likes to paint us as nine scorpions in a bottle, and that’s just not the case at all.”

The NY Times also covers the Zimmerman interview:

The assault happened while Mr. Zimmerman tried to pull his cellphone out, he said. Mr. Zimmerman said he had yelled “help” repeatedly, hoping that the police would hear him. After he shot Mr. Martin, he said, he was “terrified” and nervous the police might shoot him if they saw him with a gun.

Mr. O’Mara said the state’s stand-your-ground self-defense law was appropriate for the case. The law permits people who fear great bodily injury or death at someone else’s hands to use lethal force to defend themselves.

Mr. Zimmerman said he had volunteered to take lie detector tests and voice tests, which he said he had passed. “I didn’t have anything to hide,” he said.

The interview ended with Mr. Zimmerman apologizing to the Martin family, and to America for any racial polarization the shooting may have caused.

To Mr. Martin’s family, “I would tell them again that I’m sorry,” he said, adding: “I am sorry they buried their child. I can’t imagine what it must feel like, and I pray for them daily.”