President Obama nominates Merrick Garland to Supreme Court

The irony is that he is more conservative than Justice Scalia on criminal justice issues.  Even the President is promoting his law and order background:

"Merrick Garland would take no chances that someone who murdered innocent Americans might go free on a technicality." —@POTUS #SCOTUSnominee

— The White House (@WhiteHouse) March 16, 2016

The Republicans would be silly to say no to him.

President Obama to announce SCOTUS pick at 11am (UPDATED)

UPDATE at 10am -- the AP is reporting that sources say it's Judge Merrick Garland.From ThinkProgress:

The former prosecutor also has a relatively conservative record on criminal justice. A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” in addition to seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise a argument relating to sentencing on remand,” during the 13 years Garland had then spent on the DC Circuit.
To be clear, Garland’s record does not suggest that he would join the Court’s right flank if confirmed to the Supreme Court. He would likely vote much more often than not with the Supreme Court’s liberals, while occasionally casting a heterodox vote. Nevertheless, as Goldstein wrote in 2010 when Garland was under consideration to replace the retiring liberal Justice John Paul Stevens, “to the extent that the President’s goal is to select a nominee who will articulate a broad progressive vision for the law, Judge Garland would be a very unlikely candidate to take up that role.”

Original Post -- DC people are predicting Sri Srinivasan.  If you are looking to kill time until the announcement, you can read a summary of all of his opinions by Tom Goldstein here:

Srinivasan has few significant criminal law decisions. So far as I can determine, he has voted to overturn a criminal conviction only in a single case, in which he overwhelmingly rejected the defendants’ appeals.  United States v. McGill, 2016 U.S. App. LEXIS 3734, No. 06-3190 (D.C. Cir. 2016) (member of unanimous per curiam majority) (overwhelmingly affirming convictions and sentences in large-scale drug racketeering case, although reversing with respect to a few limited issues).  In the other cases, he affirmed.  In re Sealed Case, 809 F.3d 672 (D.C. Cir. 2016) (member of unanimous majority) (rejecting challenge to sentence of supervised release); United States v. Zagorski, 807 F.3d 291 (D.C. Cir. 2015) (member of unanimous majority) (affirming child pornography sentence); United States v. Miller, 799 F.3d 1097 (D.C. Cir. 2015) (opinion for the Court) (rejecting challenges to fraud conviction); United States v. Cano-Flores, 796 F.3d 83 (D.C. Cir. 2015) (member of unanimous majority) (rejecting challenges to drug importation conviction but remanding for reassessment of $15 billion forfeiture); United States v. Ballestas, 795 F.3d 138 (D.C. Cir. 2015) (opinion for the Court) (upholding extraterritorial application of Maritime Drug Law Enforcement Act); United States v. Munoz Miranda, 780 F.3d 1185 (D.C. Cir. 2015) (rejecting attempt to challenge guilty plea); United States v. Arrington, 763 F.3d 17 (D.C. Cir. 2014) (opinion for the Court) (rejecting attempts to reopen criminal conviction); United States v. Baxter, 761 F.3d 17 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenges to fraud conviction); United States v. Garcia, 757 F.3d 315 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenges to conviction and sentence for cocaine importation); United States v. Fahnbulleh, 752 F.3d 470 (D.C. Cir. 2014) (member of unanimous majority) (affirming fraud convictions and sentences); United States v. Solofa, 745 F.3d 1226 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenge to conviction and sentence); United States v. Taylor, 743 F.3d 876 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenge to refusal to reduce crack cocaine sentence).
Srinivasan has also rejected a variety of other claims by criminal defendants, in addition to the filing fee ruling discussed above in which the Supreme Court agreed with his reading of the statute. Asemani v. United States CIS, 797 F.3d 1069 (D.C. Cir. 2015) (opinion for the Court) (upholding denial of in forma pauperis status to prisoner under three-strikes bar); Thomas v. Holder, 750 F.3d 899 (D.C. Cir. 2014) (member of unanimous majority) (rejecting prisoner’s appeal on the merits) (concurring opinion argues that Prison Litigation Reform Act’s three-strikes provision may be unconstitutional); United States v. Dillon, 738 F.3d 284 (D.C. Cir. 2013) (member of unanimous majority) (sustaining order to medicate defendant to render him competent to stand trial).
Srinivasan’s rulings favoring criminal defendants have been largely procedural. United States v. Mathis-Gardner, 783 F.3d 1286 (D.C. Cir. 2015) (member of unanimous majority) (remanding for explanation of decision to terminate supervised release); Daniel v. Fulwood, 766 F.3d 57 (D.C. Cir. 2014) (member of unanimous majority) (reinstating ex post facto challenge to parole guidelines); Payne v. Stansberry, 760 F.3d 10 (D.C. Cir. 2014) (member of unanimous majority) (reinstating claim for denial of effective appellate counsel); In re Miller, 759 F.3d 66 (D.C. Cir. 2014) (member of unanimous court) (authorizing filing of successive challenge to criminal defendant’s sentence); United States v. Wyche, 741 F.3d 1284 (D.C. Cir. 2014) (dissenting opinion) (dissenting in relevant part from sua sponte determination that sentencing determination was harmless).
In the search-and-seizure context, Srinivasan’s most interesting case found a violation of the Fourth Amendment over a dissenting opinion. United States v. Peyton, 745 F.3d 546 (D.C. Cir. 2014) (member of two-judge majority) (holding that evidence must be suppressed because third party lacked authority to authorize search of shoe box) (dissent would find authority to consent because shoebox was in common living area). But in another case, he found no Fourth Amendment violation under existing precedent and declined to join an opinion that would have revisited that precedent. United States v. Gross, 784 F.3d 784 (D.C. Cir. 2015) (opinion for the Court) (rejecting claim that police encounter amounted to Fourth Amendment seizure) (concurring opinion argues for overturning existing precedent).

Former SDFLA U.S. Attorney says reject Trump

Bob Martinez, a well-known and well-respected lawyer in South Florida, and a longtime Republican wrote an op-ed in the Miami Herald urging voters to reject Trump:

I do not believe that any political party should stir up bigotry or racial animosity (that should not be a remarkable statement in 2016, particularly in this country, yet, sadly, it needs to be said today — in this country). As a lifelong and proud Republican, I reject in every way the appeal to sexism, racial animosity and bigotry that Trump espouses, as he plays to people’s worst and imagined fears: supporting “the total and complete shutdown of Muslims entering this country,” solely because of their religion, making vulgar, sexist remarks, mocking the disabled, calling for the mass round-up and deportation of undocumented Latinos and flirting with white supremacists, including his comment that: “I don’t know anything about David Duke” — making him either the most ignorant candidate, or just the latest political demagogue.
I refuse to engage in the folly of assuming that this is just “shtick” and that Trump will obviously govern differently, or that the weight of the office will mold him into something more high-minded. History is littered with these assumptions and rationalizations, and they only lead to moments of great regret. I don’t know the man. But, I take his words and his actions seriously. Apart from the total idiocy of his pretend policy statements, he carefully selects his words to divide the nation and provoke hatred and bigotry.
If we learned anything from Niemoeller’s journey, it is that the only way to combat bigotry, regardless to whom it is directed, is head-on and with a clarity of conviction, and even at moments — especially at moments — when there may be less confrontational routes.
If we treat hate speech and bigotry with anything less than outrage, we give it oxygen. We give it life.
I am fond of my political party, but I love this nation far more. If the Republican Party stands for nothing other than winning elections, then it will lose its legitimacy to govern and it will lose the general election. To vote for Trump is to vote for a bigot. It is no more complicated than that.

Happy PI day.

3.14




It's also March Madness.  Canes are a 3 seed in a tough bracket.

And Thursday is St. Patrick's Day.

What a busy week.

Local news -- the Broward Marshal who was involved in the drug ripoff in California got 10 years.  (via Paula McMahon).

And this guy really really had to go. (via Daily Commercial).

Judge Reggie Walton speaks to Federal Bar Association

It was an entertaining and informative talk.  His college roommate and best friend, Judge Donald Graham, introduced him.  But neither of them would give up any good college stories about the other.  Friend privilege is even more sacred than the FISA privilege...

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 💩💩💩

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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."

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