"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.

Congrats to Bill Matthewman

Friday news and notes

Today is Judge William Matthewman's investiture at 12:30. Love Judge Matthewman, but 12:30? That's a rough time for an event. What about lunch?

See Rumpole, you aren't the only one with long lines at the courthouse. This was taken this morning:

What about the debates last night? Good stuff. Joe Biden came out swinging and was strong on substance. But what about all the smiling and facial expressions?

We are taught as lawyers to keep a poker face and we tell our clients the same thing. But is that the best advice? Should we be showing emotion in court in front of the jury?

Joe Biden's facial expressions during the debate were:
	distracting
	dislikable
	likable
	a good way to show emotion
pollcode.com free polls

Presidential Thursday

President Obama is in town today and will be speaking at UM around 3:30 and then on Brickell around 5.  Traffic is going to be an absolute nightmare.  Maybe this is one of those days (take a deep breath Tannebaum) that you want to work out of the Starbucks close to home. 

Should be a fun night with the VP debate.  Ryan vs. Biden should have some fireworks...

Meantime, Justice Ginsburg had this crazy party while her 120-year old parents were away:

With her parents leaving town to celebrate their 98th wedding anniversary, Justice Ruth Bader Ginsburg made plans Friday for a major house party, inviting all her Supreme Court colleagues to what she promised would be “a classic Ginsburg throwdown.”
Ginsburg, a Clinton appointee who traditionally votes with the court’s liberal wing and whose 120-year-old parents explicitly told her not to have any friends over, confirmed that she waited until her mother and father had pulled out of the driveway before texting “it’s on” to her fellow justices and telling them to “get ready to drink [their] asses off.”
“My dad is seriously crazy if he thinks I’m not going to throw an epic rager when I have the house to myself all weekend,” said Ginsburg, whose father, a furrier and haberdasher by trade, reportedly wrote down the mileage on his 1928 Ford Model A so he would know if his daughter took it out for a spin. “As far as I’m concerned, when the cats are away, the mice will play.”
“Besides, I’m 79,” she continued as she prepared a tray of Jell-O shots using the mix favored by her supercentenarian mother for its softness on her toothless gums. “They can’t tell me what to do anymore.”
According to sources, Justices Antonin Scalia, Anthony Kennedy, Samuel Alito, Stephen Breyer, and Clarence Thomas arrived first, catching a ride to the party in the open-backed Jeep Wrangler of Chief Justice John Roberts, who had earlier persuaded his older sister Kathy to buy beer. Justices Sotomayor and Kagan showed up shortly thereafter, having taken longer than expected to dupe their parents into thinking they were sleeping over at each other’s houses.

 Yes, that's from the Onion.... 

B-Girls trial to start

Judge Scola will be presiding over this month long trial involving South Beach clubs, booze, and hot women (known as B-girls). According to Jay Weaver of the Miami Herald:

On trial starting Tuesday are four reputed associates, along with a Sunny Isles Beach investor who once dabbled in local politics. They’re accused of orchestrating a fraud scheme to run up the credit card bills of South Beach tourists by hundreds of thousands of dollars.
...
Among those standing trial: Stanislav Pavlenko, 41, Albert Takhalov, 31, Kristina Takhalov, 31, and Siavash Zargari, 48, who live in the Aventura and Sunny Isles Beach area. Longtime Sunny Isles real estate broker Isaac Feldman, 51, is the fifth defendant

What about the alleged victims? More from Jay:

In total, the B-Girls, who received 20 percent commissions for bringing in customers, ripped off about 90 patrons, mostly tourists or businessmen with telltale signs of wealth, such as expensive watches or shoes, authorities say.

One victim from Philadelphia, who was approached by two B-Girls at the Delano Hotel, complained he was taken for $43,000 at Caviar Beach on Washington Avenue. His American Express bill included dozens of charges for booze.

In court papers, the victim is identified as “J.B.” According to lawyers in the case as well as published reports, the victim was John Bolaris, a former Philadelphia TV weatherman who gave an interview to Playboy magazine for an article on the case.

Myles Malman wants to be able to go after JB to show there was no crime here:

But Feldman’s lawyer, Malman, said his goal in questioning J.B. is “to establish that he consciously and intentionally tried to pick up two women at the bar at the Delano Hotel, spent large amounts of money on alcohol in an effort to impress them and/or to induce them to engage in physical relations with him, and is in reality no victim at all,” according to a court filing.

Should be a fun case to follow.

Anyone working today?

Schools are open but courts are closed, so this is a weird Monday morning. Here's what's happening:

1. Judges win cost of living increase case that they brought in the Federal Circuit.

SCOTUSBlog says that the case is likely headed to the Supremes (because, of course, the Executive branch is opposing the COLA increases):

After battling for years to get a pay raise that they say Congress had once promised them, six federal judges finally won in a specialized federal court on Friday.  If the ruling withstands a likely trip to the Supreme Court, those judges – and presumably others – will get annual cost-of-living increases that have been specifically vetoed by Congress.   The ten-to-two decision by the Federal Circuit is here.
The Court ruled that, in a 1989 law upon which the judges have been relying, Congress triggered the judges’ right under the Constitution not to have their pay level diminished.  The Compensation Clause itself, the decision said, creates “basic expectations and protections” on judges’ pay.
Thus, it concluded, “in the unique context of the 1989 act, the Constitution prevents Congress from abrogating that statute’s precise and definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary.”
In reaching its decision, the Federal Circuit overruled a decision it had reached in 2001 – one that the Supreme Court had refused to disturb in 2002– and it found that it was not bound by a 1980 decision of the Supreme Court.  Both of those rulings had gone against judges claiming that they were unconstitutionally denied pay raises.

2.  Justice Sotomayor is a nice person.  Here's a letter she sent after eating at a DC restaurant.

3.  Shouldn't federal agencies track whether informants are committing crimes?  According to this USA Today article, many don't:

The nation's top drug and gun enforcement agencies do not track how often they give their informants permission to break the law on the government's behalf.
U.S. Justice Department rules put strict limits on when and how agents at the FBI, Drug Enforcement Administration and Bureau of Alcohol, Tobacco, Firearms and Explosives can authorize their informants — often drawn from the ranks of the criminals they are investigating — to commit a crime. But both the ATF and DEA acknowledged, in response to open-records requests and in written statements, that they do not track how often such permission is given.
That routine, if controversial, tactic has come under renewed scrutiny in the wake of the bungled "Fast and Furious" gun-trafficking investigation, which allowed 2,000 weapons to fall into the hands of Mexican drug cartels and other criminals. A report by the Justice Department's Inspector General found that ATF agents failed to get authorization from their superiors before they allowed gun dealers to sell weapons to suspected cartel operatives.
The report, delivered in September, is the latest internal probe to find agents ignoring the rules. And the department continues to face accusations that its agents overlook crimes by their informants, including one case this year involving an alleged Boston mob captain who was working for the FBI.
"The way we use confidential informants is a huge aspect of the daily operation and also the legitimacy of the criminal justice system," said Alexandra Natapoff, a professor at Loyola Law School Los Angeles. "It's insane that even the law enforcement agencies that actually carry out this policy may not always know how their operatives are doing it."

 4.  REVOLUTION!  Well, at least another potential sentencing revolution.  The Supreme Court is taking another look at Harris, the case that says that prosecutors need not prove to a jury facts that increase minimum mandatories.  From SCOTUSBlog:

Just as the Supreme Court set off a revolution in criminal sentencing with its 2000 ruling in Apprendi v. New Jersey, on Friday it set the stage for another — tied directly to the Apprendi precedent.  The Court agreed to consider overruling one of its own precedents that allowed judges, rather than juries, to rule on facts that would allow more than a minimum sentence to be imposed.  Until now, the “Apprendi rule” had only insisted that juries find the facts to raise a sentence beyond a maximum, not a minimum.
At issue is the continuing validity of the 2002 decision in Harris v. United States, in which the Court was widely splintered.  The strength of that ruling as a precedent now appears to depend upon whether the Justice who cast the fifth vote to make a majority for the result there – Justice Stephen G. Breyer  — has changed his mind.  There have been signs that he may have done just that.  In any event, there were at least four votes to face the issue anew.
The one facet of this issue that might limit the scope of an overruling of Harris is whether a decision that a jury must find the facts necessary to raise a sentence only applied to an enhancement of a minimum that was mandatory, but not necessarily to any increase in the floor sentence within a range.  The Court might have to confront, if it were to cast Harris aside, whether such a ruling would apply across the board to enhanced sentencing, above any floor even if not mandated as the minimum.   The new case does involve a mandatory minimum.

The newly granted case is Alleyne v. United States (docket 11-9335), growing out of the robbery of a convenience store owner in Richmond, Va.   Allen R. Alleyne got eighty-four months added to his basic sentence for the robbery, on the theory that he would have known that his accomplice in the robbery would wield a gun as they carried out the robbery.  The added sentence was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself.

5.  Your moment (hour and a half) of Zen.  The Rumble in the Air-Conditioned Auditorium:

Maybe Obama needs to have his tie cut before the next debate

Debate night (UPDATED)

Should be a fun debate tonight.  I always enjoy watching these debates to see how persuasive speakers work their craft.  Here's a clip from last night's debate between Elisabeth Warren and Scott Brown.  Who do you think gave the better, more persuasive answer:



UPDATE -- I find it really interesting to read the comments to see how people interpret the same video.  So, who do you think got the better of this exchange: