Judge Adalberto Jordan withdraws name from SCOTUS consideration

CNN broke the story here:

Adalberto Jordan, a federal judge in Miami seen as a top contender for the Supreme Court vacancy, has withdrawn his name from contention, a lawmaker told CNN on Wednesday.

"He pulled himself out of consideration," Sen. Bill Nelson, D-Florida told CNN. Nelson said Jordan made the decision because of a "personal, family situation" involving his mother.

"I talked to him ... I think that's unfortunate because he is squeaky clean," Nelson said, citing Jordan's long judicial record and his overwhelming confirmation by the Senate in 2012.

Curt Anderson profiles Judge Jordan, SCOTUS short-listers

Here's the piece:

Adalberto Jordan, a federal appeals court judge twice confirmed by the U.S. Senate, could become the Supreme Court's first Cuban-American justice if nominated by President Barack Obama and approved once again.

Jordan, 54, is one of a number of potential nominees to replace Justice Antonin Scalia, who died last month. Obama has vowed to nominate a successor, but Senate Republicans say they will withhold approval in hopes that a new Republican president can pick the next justice.

Born in Havana shortly after the communist revolution led by Fidel Castro, Jordan emigrated to the U.S. with his family as a small boy, along with thousands of other Cuban exiles. He attended a Catholic high school in Miami and got both his bachelor's and law degrees from the University of Miami.

Jordan, who goes by "Bert," has served as a federal prosecutor, a U.S. district judge appointed by President Bill Clinton and has sat on the generally conservative 11th U.S. Circuit Court of Appeals since 2012 - the first Cuban-American to do so. He also clerked for former Supreme Court Justice Sandra Day O'Connor and was in private practice for five years.

The Senate confirmed him to the Atlanta-based appeals court by a 94-5 vote.

During his confirmation hearings, Jordan was asked by Sen. Orrin Hatch, R-Utah, about his views on the impartiality of judges and whether there was any place for personal or political viewpoints in their rulings.

"We are all human beings, of course, but I think as a judge you need to try and strive very, very hard to make sure you are deciding the case on something other than your own preferences and views, whatever those might be," Jordan replied. "So I have strived and I hope I have achieved impartiality in my years on the bench in Miami."

Federal prosecutor and defense lawyer debate meaning of "poop" emoji 💩💩💩

💩💩

I kid you not. This was the Molly retrial in front of Judge Moreno. This time, it ended in a guilty verdict.

Dave Ovalle covers it here:

Prosecutors also introduced text messages, jail phones calls from Melton and Hernandez to Pereira, who was in jail on an unrelated case. Also shown to the jury were records that the government said showed at least 12 boxes of Molly were ordered to the company, Transfreight International.

The star witness was Hernandez, 37, a heavily tattooed former U.S. Army soldier and Arabic linguist who served in Iraq and Afghanistan. In an only-in-Miami moment, both sides sparred over the meaning of the smiley-faced “poop” emoji in a text from Hernandez to Melton — with the government insisting it was sent to indicate alarm over law-enforcement scrutiny on their operation.

As Billy Corben would say: "Because Miami."

💩💩

It's Leahy's turn at SCOTUSblog

His sunshine post made me think of this song.

Supreme Court Justice Louis Brandeis, a staunch believer in open government, famously said that sunlight is the best disinfectant. Transparency enables the American people to hold their government accountable and to engage in the democratic process. Unfortunately, eleven Republican Senators are trying to deny a full and open debate on the next nominee to the Supreme Court – BEFORE that individual has even been named.

The Senate Judiciary Committee began its practice of holding public hearings on Supreme Court nominees a century ago, in 1916, and fittingly the nominee was Louis Brandeis. Since then, the Senate’s process for considering nominees to the highest court in the land has become more transparent and more accessible to the American people. In 1981, for example, Justice Sandra Day O’Connor made history in two ways – she was the first woman nominated to the Court, and her confirmation hearings were the first to be televised. Today, Americans can follow these important public confirmation proceedings through online webcasts, social media, and other platforms. These are positive steps towards opening up the highest court in the land to the Americans it affects.

Recently, Republicans on the Senate Judiciary Committee announced that they want to block this transparent process. They gathered in a closed-door, backroom meeting in the Capitol and unilaterally decided that the Senate Judiciary Committee would not consider any Supreme Court nominee this year. The meeting was closed to press, to the public, and to Democratic Senators who serve on the Judiciary Committee. In a letter to the Majority Leader after the meeting, Republican committee members justified their decision as one “born of a necessity to protect the will of the American people.” What are Republicans trying to protect Americans from? And what exactly was said during that closed-door meeting?

In my forty years in the Senate, every pending Supreme Court nominee has received a public hearing and a vote. This process has given Americans the opportunity to experience democracy in action. It is a chance to witness history in the making as Senators discuss with a Supreme Court nominee pressing issues about our democracy, our government, and crucial questions about our Constitution.

Meantime, the NY Times covers amicus briefs here:

As in all big Supreme Court cases these days, there were scores of supporting briefs filed in Wednesday’s showdown over a restrictive Texas abortion law.
From Our Advertisers

These friend-of-the-court filings — lawyers call them “amicus curiae briefs” — were diverse, but they were not random. They were the product of a coordinated campaign of judicial lobbying called “the amicus machine,” according to a new study based on interviews with more than 20 leading Supreme Court lawyers.

The teams preparing for major Supreme Court cases must now include two new members, the study said: the amicus wrangler and the amicus whisperer.

“The wrangler is gathering the troops,” said Allison Orr Larsen, a professor at William and Mary Law School and one of the study’s authors, “and the whisperer is coordinating the message.”

Finally, Joe Biden has an idea -- nominate Cruz to the Supreme Court:

Vice President Joseph R. Biden Jr. had some tongue-in-cheek advice for President Obama on Saturday about whom he should nominate to fill the Supreme Court vacancy that has preoccupied the White House and incited an election-year fight.

Choose Senator Ted Cruz, Mr. Biden joked, referring to the Republican presidential candidate from Texas, who is unpopular with his colleagues.

“Look, I told Barack if you really, really want to remake the Supreme Court, nominate Cruz,” Mr. Biden said at the annual Gridiron Dinner, according to excerpts from his prepared speech released by his office. “Before you know it, you’ll have eight vacancies.”

It was more than just a humorous dig at Mr. Cruz during the traditional Washington event, where politicians roast themselves in speeches and journalists lampoon them in musical skits. Mr. Biden’s remarks hit on the historic stakes facing the president as he ponders his choice to succeed Justice Antonin Scalia, who died last month, leaving Mr. Obama with a chance to fundamentally reshape the nation’s highest court by replacing its leading conservative.

Your Friday Afternoon Moment of Zen

A friend of the blog has sent this video for you to enjoy:

Add Robin Rosenbaum to SCOTUSblog's shortlist

Tom Goldstein puts Rosenbaum along with Jordan and Pryor (Jill), right outside of the top 5:

Three judges on the Eleventh Circuit easily could appear on this list of serious candidates from the courts of appeals, although I consider them somewhat less likely for various reasons.
Hon. Aldaberto Jordan was confirmed to the Eleventh Circuit by a vote of 94-5. He previously served as a district court judge, confirmed 93-1.
Hon. Jill Pryor was unanimously confirmed to the Eleventh Circuit.
Hon. Robin Rosenbaum was unanimously confirmed to the Eleventh Circuit, and previously served as a district judge (confirmed 92-3) and worked as a prosecutor.

Justice Kagan knows that there are two Zoolander movies!

She says so in today's dissent in Lockhart v. United States:

JUSTICE KAGAN, with whom JUSTICE BREYER joins, dissenting.

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new StarWars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.” Surely a person would have cause to protest if punished under that provision for vio­lating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase—“involved with the new Star Wars movie,” “in New York,” “relating to insider trading”—applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case. Avon-dale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2). The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list. But properly read, the modifier applies to each of the terms—just as in the examples above. That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children. And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty. I respectfully dissent.

The Empire Strikes Back... on SCOTUSblog

Senator Chuck Grassley has responded to President Obama on SCOTUSblog.  You gotta love that a law blog is hosting a debate between the President and the chair of the judiciary committee.  It's incredible when you think about it.  Well, here's the intro:

The Constitution grants the authority to nominate and approve Supreme Court Justices to coequal branches of the federal government. The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent.
However, in his post, President Obama six times states that he “appoints judges to the Supreme Court.” From that fundamental misunderstanding, he reveals that the person he will nominate, not appoint, will be someone whose decisions are not tied to the Constitution’s text.
Like most of his nominees, the President pays lip service to the notion that judges are to “interpret the law, not make the law,” but then submits that in cases where “the law is not clear” his nominee’s views “necessarily will be shaped by his or her own perspective, ethics, and judgment.” And of course, his nominee will “arriv[e] at just decisions and fair outcomes” based on the application of “life experience” to the “rapidly changing times.”
The President, candidly to his credit, has unambiguously informed the American people that his nominee will apply his or her own ethics and perspectives in deciding cases. This goes to the heart of the matter and it is a question that confronts the American people during this presidential election.

Meantime, it's NY vs. California in the Apple vs. FBI showdown.  A New York federal magistrate has correctly ruled that Apple does not need to help the government break into one of its customer's phones:

A federal magistrate judge on Monday denied the United States government’s request that Apple extract data from an iPhone in a drug case in New York, giving the company’s pro-privacy stance a boost as it battles law enforcement officials over opening up the device in other cases.

The ruling, from Judge James Orenstein in New York’s Eastern District, is the first time that the government’s legal argument for opening up devices like the iPhone has been put to the test. The denial could influence other cases where law enforcement officials are trying to compel Apple to help unlock iPhones, including the standoff between Apple and the F.B.I. over the iPhone used by one of the attackers in a mass shooting in San Bernardino, Calif., last year.

Judge Orenstein, in his 50-page ruling on Monday, took particular aim at a 1789 statute called the All Writs Act that underlies many government requests for extracting data from tech companies. The All Writs Act broadly says that courts can require actions to comply with their orders when not covered by existing law. Judge Orenstein said the government was inflating its authority by using the All Writs Act to force Apple to extract data from an iPhone seized in connection with a drug case.

The order is here. 

And if you want some local news, we have West Boca banker Richard Ohrn who is charged with faking getting lost at sea.  From the Sun-Sentinel:

Ohrn on March 31, 2015, set a rented, blood-stained fishing boat adrift in the Atlantic Ocean, used an inflatable boat to motor back to shore and then fled to Georgia in a pickup truck, according to a Palm Beach County sheriff's report.
That triggered more than two days of rescuers searching by air and sea over 3,100 square miles for someone who had actually slipped away to a rented house in Albany, Ga. — all to try to escape mounting costs from a lawsuit, according to the report.
Now Ohrn, 45, faces a felony charge of communicating false distress to the U.S. Coast Guard, according to a grand jury indictment filed Thursday.

Ohrn knowingly caused "a false distress message" that prompted the Coast Guard "to attempt to save lives and property when no help was needed," according to the indictment.
The Coast Guard last year estimated that it cost nearly $400,000 for the aircraft expenses alone in the search for Ohrn.

 Only in the Southern District of Florida!