Tuesday News & Notes

1.  Which group is more diverse?  The U.S. Supreme Court or the lawyers who argue before it? 

The Supreme Court by a long shot.  From the AP:

In roughly 75 hours of arguments at the Supreme Court since October, only one African-American lawyer appeared before the justices, and for just over 11 minutes.

The numbers were marginally better for Hispanic lawyers. Four of them argued for a total of 1 hour, 45 minutes.

Women were better represented, accounting for just over 17 percent of the arguments before the justices.

In an era when three women, a Hispanic and an African-American sit on the court and white men constitute a bare majority of the nine justices, the court is more diverse than the lawyers who argue before it.

***

The statistics from the court term, though, also reveal a lack of African-American and Hispanic lawyers in the elite Justice Department unit that represents the federal government at the Supreme Court.

The top supervisory positions in the Office of the Solicitor General all are held by men, though there are six women in the office who argued high court cases this term.

The office serves as a pipeline to the big firms that dominate the argument calendar at the court. Lawyers in the office make several arguments a term and acquire the experience and ease of standing before the justices that make them attractive to private firms.

2.   What does defalcation mean? Even though the Urban Dictionary doesn't define it, the High Court has finally decided:

After a century and a half of uncertainty, the U.S. Supreme Court on Monday finally decided the meaning of "defalcation," a word in the bankruptcy code that can refer to embezzlement but also, more generally, misuse of funds.
Under federal bankruptcy law, anyone acting as a fiduciary who later seeks bankruptcy relief cannot discharge debts if there is evidence of "fraud or defalcation."
In a unanimous decision, the court said that for a court to make a defalcation finding about a trustee, the person in question must be acting with gross negligence or have some knowledge that what he or she is doing is improper.
In the past, the precise meaning of defalcation had not been determined by the Supreme Court. The term was first used in bankruptcy law in 1841 and in relation to discharge of debt in 1867.
In making its views known, the court handed a victory to Randy Bullock, an Illinois man who is filing for bankruptcy.
Bullock wanted to discharge debt concerning money he owes for his role overseeing his father's life insurance trust. He used money from the trust to make investments for himself and other family members. He eventually paid the money back with interest.
The question before the court was whether Bullock's actions, which did not deprive the trust of any money, fitted within the legal definition of defalcation.
The court did not make a final determination on that point, instead remanding the case back to the district court so that the new definition of defalcation can be applied.

3.  Sixty percent of the time the Supreme Court is unanimous.  I was surprised (via USA Today):

With three more 9-0 rulings issued Monday, the nine justices of the Supreme Court have now reached unanimous decisions in nearly 60% of the cases decided this term -- a loftier rate of agreement than in recent years.
That percentage is sure to drop as more controversial cases are decided between now and the end of June, when the 2012 term ends. Last term, the justices were unanimous 45% of the time. The recent high was 48% two years ago. From 2006-08, fewer than four in 10 rulings were unanimous.
For this time of year, however, the 60% mark is quite an achievement for a court narrowly divided between Republican and Democratic nominees. During the past three years, slightly more than half the decisions were unanimous at this time, according to detailed statistics kept by Scotusblog.com.
Chief Justice John Roberts puts a premium on reaching consensus. So he likely was pleased Monday when the three decisions announced by Democratic nominees Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan each garnered nine votes. None of the other justices even chose to write separate concurring opinions.

11th Circuit conference criticized

Seems like every judicial conference is under attack these days.  From Jaime Dupree of the AJC:

Even as automatic budget cuts force various federal agencies to cut spending, a group of federal judges from the Atlanta-based Eleventh Circuit went ahead with their 2013 Judicial Conference last week, spending several days - and maybe several hundred thousand dollars - at a golf resort and spa in Savannah, Georgia.
"The Eleventh Circuit did not cancel the 2013 conference because it is an infrequent and valuable meeting of judges and attorneys that improves the administration of justice within the circuit," said James Gerstenlauer, the Chief Executive of the Eleventh Circuit, as he defended the legal gathering.
"In addition, there were significant financial costs associated with cancelling the conference because of contractual guarantees made to the hotel and the conference center," Gerstenlauer added in an email.
The gathering of 167 federal judges from Georgia, Florida and Alabama came just weeks after the Chief Judge for the Eleventh Circuit was quoted on a legal web site as saying the $85 billion sequester was having a "devastating impact" on the federal judiciary.
The last judicial conference held by the Eleventh Circuit was in May of 2011 at the Swan Hotel in Orlando, Florida; Gerstenlauer said that gathering cost "about $211,000 in travel and lodging expenses" for 159 judges.
"The government travel costs for the 2013 conference are not yet compiled," Gerstenlauer said.
***
The theme of the conference was, "Justice, History, and Civil Liberties," and featured "historical presentations about Thomas Jefferson and the trial of the slave ship Wanderer."
"No taxpayer funds were spent for speakers for the conference or for the slave ship Wanderer presentation," Gerstenlauer said.

 The article also has a response from the 11th Circuit, which is interesting. Here's a portion of it:

No taxpayer funds were spent for speakers for the conference or for the slave ship Wanderer presentation.

Attendees received retractable pens, which cost approximately 58 cents each; no taxpayer funds were used to purchase the pens. No gifts were provided to conferees.

The Eleventh Circuit did not cancel the 2013 conference because it is an infrequent and valuable meeting of judges and attorneys that improves the administration of justice within the circuit.  In addition, there were significant financial costs associated with cancelling the conference because of contractual guarantees made to the hotel and the conference center.

The travel expenses for federal judges were paid with government funds pursuant to travel regulations.  No reimbursements were provided for either their spouses or family members.  Attorney attendees paid a $375 conference registration fee and paid their own travel expenses. The government travel costs for the 2013 conference are not yet compiled.  

What are your thoughts on judicial conferences?

Gen. William Suter

The Clerk of the U.S. Supreme Court addressed the Federal Bar Association yesterday at the Hyatt.  It was a very entertaining speech.  Lots of good stories about the Court.

But Suter was also substantive.  For example, he predicted that the exclusionary rule would be abolished in the near term.  He reasoned that the exclusionary rule was not as necessary any longer because police are better trained than they used to be.

He also made predictions about the affirmative action case, and said that if the case was remanded for strict scrutiny analysis that it would have a hard time getting back before the Supreme Court because Justice Kagan was recused.

Judge Graham asked him about cameras in the courtroom and explained that no one had taken advantage of the pilot program here in his division the SDFLA.  Suter was not in favor of cameras, saying Congress should pass a budget first and that cameras would demean the Court.  He also said no one would watch.  Not a convincing argument for me, but that seems to be the feeling of the Court.

I asked him if he read SCOTUSBlog.  He said yes, he needed to find out what was going on in the Court every morning.  Good stuff.

U.S. Supreme Court Clerk William Suter to speak to the Federal Bar today

They call him "The General" and he'll be at the Hyatt at noon. 

He's retiring at the end of this Term after 20 years at the High Court.

Should be an entertaining talk.

11th Circuit

The judges are back from the 11th Circuit conference, which was in Savannah, Georgia last week.

Apparently the agenda included a re-enactment of a slavery trial that occurred in Savannah and also a speech by a Thomas Jefferson impersonator.



Meantime, there are still two openings on the 11th Circuit and apparently no progress being made in moving those nominations forward.

Since the 11th got back to business this week, it has ruled on an interesting case involving Cuba.  From Bloomberg:

Florida lost a court bid to reinstate a law prohibiting state agencies from entering into contracts worth $1 million or more with companies that do business with Cuba.
The U.S. Court of Appeals in Atlanta said today that the Florida measure “reaches far beyond the federal law in numerous ways and undermines the president’s exercise of the discretion afforded him by Congress.” A three-judge panel upheld a July ruling by a lower court in Miami barring enforcement of the law.
The “Cuba Amendment” legislation was signed on May 1, 2012, by Florida Governor Rick Scott, a Republican, and covers an estimated $8 billion in annual state contracts, the appeals court said. The law, designed to apply economic pressure to the communist regime in Cuba beyond the U.S. government sanctions already in place, was challenged by Odebrecht Construction Inc. 

And back home in South Florida, it looks like Judge Rosenbaum will be busy with this case filed by Frank Haith.  From the Herald:


Former University of Miami basketball coach Frank Haith on Monday morning filed a petition in Miami-Dade federal court seeking subpoenas to try to uncover whether his checking account records were accessed illegally by unauthorized parties as part of the NCAA Nevin Shapiro investigation.
He and his attorney, Michael Buckner, want to be able to depose Bank of America employees and make sure the bank preserves evidence in anticipation of a civil lawsuit.
The Rule 27 Petition, obtained by The Miami Herald, states that in October 2012, Haith and his wife, Pamela, became suspicious of a possible privacy breach and have tried unsuccessfully to resolve the issue through repeated requests to the bank. If a Bank of America employee or agent permitted an unknown party to view or procure the records, it could be a violation of federal and state laws.
Haith, now at the University of Missouri, had been asked by the NCAA to provide microfiche copies of three checks dated June 10, 2010. He had already provided photocopies of those checks, and other financial documents, in October 2011, but the NCAA wanted clearer images. Each check was for $3,200 andmade out to his assistant coaches — Jorge Fernandez, Jake Morton and Michael Schwartz.

Read more here: http://www.miamiherald.com/2013/05/07/3383416/bank-account-of-ex-um-coach-frank.html#storylink=cpy

How pro-business is this Supreme Court

Apparently, the most pro-business Supreme Court ever... From the NY Times:

But the business docket reflects something truly distinctive about the court led by Chief Justice John G. Roberts Jr. While the current court’s decisions, over all, are only slightly more conservative than those from the courts led by Chief Justices Warren E. Burger and William H. Rehnquist, according to political scientists who study the court, its business rulings are another matter. They have been, a new study finds, far friendlier to business than those of any court since at least World War II.

In the eight years since Chief Justice Roberts joined the court, it has allowed corporations to spend freely in elections in the Citizens United case, has shielded them from class actions and human rights suits, and has made arbitration the favored way to resolve many disputes. Business groups say the Roberts court’s decisions have helped combat frivolous lawsuits, while plaintiffs’ lawyers say the rulings have destroyed legitimate claims for harm from faulty products, discriminatory practices and fraud.

Whether the Roberts court is unusually friendly to business has been the subject of repeated discussion, much of it based on anecdotes and studies based on small slices of empirical evidence. The new study, by contrast, takes a careful and comprehensive look at some 2,000 decisions from 1946 to 2011.

Published last month in The Minnesota Law Review, the study ranked the 36 justices who served on the court over those 65 years by the proportion of their pro-business votes; all five of the current court’s more conservative members were in the top 10. But the study’s most striking finding was that the two justices most likely to vote in favor of business interests since 1946 are the most recent conservative additions to the court, Chief Justice Roberts and Justice Samuel A. Alito Jr., both appointed by President George W. Bush.

 

I wonder how district courts around the country as a whole rank now -- I would bet that like the Supreme Court, they are more pro-business now than ever. 

Cuban spy to give up citizenship and remain in Cuba

Curt Anderson has all of the details:

One of the convicted spies known as the "Cuban Five" will be able to permanently remain in Cuba in exchange for renouncing his U.S. citizenship, a federal judge ruled Friday after U.S. officials dropped their initial opposition.
Rene Gonzalez, 56, has been in Cuba since April 22 to attend memorial services for his father, who died earlier last month. Gonzalez was released from U.S. prison in October 2011 but was still serving three years' probation, which the Justice Department had previously insisted must be completed in the U.S.
This week, however, the Justice Department reversed its position, leading to U.S. District Judge Joan Lenard's ruling accepting Gonzalez's offer to give up U.S. citizenship.
Reached in Havana, Gonzalez told The Associated Press he was thrilled but wanted a chance to review the judge's decision.
"First I have to read the order," he said. "If the order is real, it will be a great relief to me."

Nominees for Florida Circuit Court

The blog generally doesn't cover state court appointments (that's Rumpole's domain), but that latest Circuit Court seat has some interesting applicants from the federal family.  The Governor will decide from the following five, three of which have federal court ties:

Jason Bloch
Donald J. Cannava
Wendell M. Graham
Ayana Harris
Robert Luck

Bloch is a county attorney.  Harris is a AFPD.  Luck is a AUSA.  Cannava and Graham are county judges.