11th Circuit, per Judge Jordan, quotes Carly Rae Jepsen

The 11th Circuit, in an opinion by Judge Jordan, quoted Carly Rae Jepsen's "Call Me Maybe":

According to the district court, no reasonable jury could find that Ms.Schweitzer partially revoked her consent to receive automated calls on October 13 because she did not specify what “the morning” and “during the work day” meant. A jury could certainly find that Ms. Schweitzer—like the protagonist of a recent hit song—was too equivocal, cf. Carly Rae Jepsen, Call Me Maybe, on Curiosity (Universal Music Canada 2012), but we do not think that the lack of specificity is fatal to her claim of partial revocation.

Judge Rosenbaum's recent GoT's reference might be a little hipper, but I love that Judge Jordan listens to Call Me Maybe!

hat tip:  E.S.

Jeff Sessions is pushing for "Hang 'Um High" Henry Hudson to be on Sentencing Commission

Attorney General Jeff Sessions is pushing for "Hang 'Um High" Henry Hudson to be on the Sentencing Commission. I kid you not. Professor Berman has more at his blog here. And this, from the WSJ article:

Attorney General Jeff Sessions is urging the White House to nominate a federal judge and tough-on-crime ex-prosecutor once nicknamed “Hang ’Um High” Henry Hudson to an independent, bipartisan panel that issues sentencing guidelines. Mr. Sessions’ recommendation for one of three openings on the U.S. Sentencing Commission, confirmed by people familiar with the process, reflects the Justice Department’s broader crackdown on violent crime, including the reversal of several Obama -era policies.

The department is urging the commission to toughen sentences for certain violent criminals, drug offenders, illegal immigrant smugglers and so-called career offenders. In its annual report to the commission, the department asked it to preserve the long, mandatory-minimum sentences that supporters say help fight crime but critics say inflate prison costs and disproportionately hurt minority communities without improving public safety.

President Donald Trump, who campaigned on a promise to “restore law and order,” has the authority but is under no requirement to fill two Republican vacancies and one Democratic spot on the seven-seat commission.

Judge Hudson, who has acknowledged his colorful nickname, was a candidate for FBI director earlier this year. He is best known for sending pro-football quarterback Michael Vick to prison in 2007 for running a dogfighting ring and for finding unconstitutional a key provision of the Affordable Care Act in 2010.

“I’m excited about the opportunity to serve on the commission,” Judge Hudson, who serves in the U.S. District Court in Richmond, Va., said in a telephone interview Thursday. “I’d like to make sure the guidelines are fair and consider every possible factor in a case.”

Mr. Hudson would be the first new commission member tapped by Mr. Trump, who has reappointed two members previously nominated by former President Barack Obama. A White House official declined to discuss Mr. Hudson’s prospects, but said the administration is committed to filling all federal vacancies....

Mr. Hudson would be expected to shake up the low-profile but powerful panel, which has produced research on the prison population, recidivism and sentencing that advocates have cited in pressing for an overhaul of the criminal justice system.

In its most consequential decision in recent years, the commission in 2014 rolled back penalties for most federal drug offenses, allowing more than 30,000 inmates to seek reduced sentences and helping to trim the federal prison population for the first time in decades. That trend is expected to reverse under Mr. Sessions, a former U.S. attorney and senator from Alabama. After a string of major overhauls of Obama administration policies that sought to curb potential abuses by police and prosecutors Mr. Sessions is now seeking to make his mark on the sentencing commission.

“That is the place where the biggest sentencing reforms have been made in Washington, in that nothing the White House or Congress has done comes close,” said Kevin Ring, president of Families Against Mandatory Minimums, which favors lighter sentencing. “This little agency is a big deal and Sessions wants to exercise his influence, which is shaping up into a fight.”

Among Mr. Sessions’ recommendations is a proposal that the Sentencing Commission reduce the quantity of fentanyl, an opioid, that triggers a sentence of 10 to 16 months for possession with intent to sell. Stiffer penalties weren’t one of a slate of recent proposals made by the president’s task force on opioids, which included expanding treatment through the Medicaid program....

Mr. Hudson declined to comment on his own sentencing of some defendants to decadeslong mandatory-minimum sentences. “I’m anxious to hear the debate and hear everyone’s viewpoint,” he said. “I won’t come to the sentencing commission with any preconceived notions.”

In a 2007 memoir titled “Quest for Justice,” Mr. Hudson recalled that police in Arlington, Va., wore campaign buttons that said “I voted for “Hang ’Em High Henry” during his re-election campaign as a state prosecutor in the early 1980s. “I didn’t reject that nickname, nor did I solicit it,” he said Thursday. “My record as a judge speaks for itself.”

As a state prosecutor in liberal-leaning northern Virginia, Mr. Hudson shut down adult bookstores and massage parlors. That led to his chairmanship of former President Ronald Reagan’s national commission on pornography, which linked porn to violence. He was director of the U.S. Marshals Service during the 1992 deadly siege at Ruby Ridge, Idaho.

He also stirred controversy for prosecuting a mentally disabled man for the murder of a woman in 1984. David Vasquez served five years in prison before DNA and other evidence exonerated him. “I certainly wish him the best and regret what happened,” Mr. Hudson wrote in his memoir, saying he remained convinced of his involvement in the murder. “However, I offer no apologies.”

Death of AUSA Beranton J. Whisenant Jr. found to be a suicide

The death of AUSA Beranton J. Whisenant Jr. was found to be a suicide. Very sad.

“In defending this nation against the threat of terrorism it is neither necessary nor proper for our government to abandon the bedrock principles upon which this nation was founded. All that is sacred in our national life is secured by the promise that this is a nation of laws and not of men,” the defense wrote. “Through its illegal conduct, the government has forfeited its right to prosecute Mr. Hubbard … [and he] respectfully requests that this court dismiss the indictment against him for the government’s outrageous conduct.”

That was AFPDs Vanessa Chen and Anthony Natale in their motion to dismiss terrorism charges for outrageous government conduct. Paula McMahon is on it here:

Though many of the details have been shielded from public view at the request of prosecutors, several sources told the Sun Sentinel that the informant in question is Mohammed Agbareia, 51, of Palm Beach County. Agbareia is a convicted fraudster who was arrested in June on new federal fraud charges.
***
Agbareia was convicted of operating a “stranded traveler” fraud in 2006 for repeatedly tricking people into sending him money after claiming he lost his wallet or tickets. He pleaded guilty, got a break on his punishment and was released early from federal prison in late 2006 after serving about half of a two-year term.

Prosecutors told a judge earlier this year that they believe Agbareia went back to committing fraud very soon after he was released from prison — and while he was providing undercover help to the FBI on the Hubbard case.

Agbareia, a Palestinian citizen from Israel who has no legal immigration status in the U.S., admitted to FBI agents on several occasions that he was still committing crimes and continued doing so “despite numerous warnings to cease,” prosecutors said in court in June.

The FBI called him a “national security asset” and praised his “usefulness as a provider of intelligence to the FBI” and work as an “informer” in court records filed in 2009.

The most recent criminal charges against Agbareia allege that he resumed his “stranded traveler” fraud in 2007 and continued it until the day before he was arrested on June 21, prosecutors told a judge after his arrest.

Agbareia is jailed and has pleaded not guilty to six wire fraud charges spanning the period from 2007 to 2017. Investigators said he preyed on and defrauded Muslim people, mosques and Islamic groups on at least 200 occasions — involving about $300,000 since 2011. The fraud charges carry a maximum penalty of 20 years in federal prison.

Does this news about the SDNY's potential U.S. Attorney say anything about SDFLA?

Does this news about the SDNY's potential U.S. Attorney say anything about SDFLA?

According to Buzzfeed, Rudy Giuliani's law partner is being considered for U.S. Attorney for the Southern District of New York:

The White House is considering Geoffrey Berman, a New Jersey attorney and one of Rudolph Giuliani’s law partners, to lead the US attorney’s office in Manhattan — one of the most high-profile federal law enforcement jobs in the country.
Berman’s name was included as part of a package of proposed candidates for New York judicial and US attorney vacancies sent by the White House in mid-July to New York’s Democratic senators, according to a source familiar with the process. The list offers an early glimpse at the Trump administration’s strategy for filling vacancies in states with two Democratic senators.
Berman, who did not immediately return a request for comment, was the only name that the White House proposed for US attorney in the Southern District of New York. In contrast, the administration sent multiple names for other positions, including for federal judgeships and US attorney for the Eastern District of New York. A second source familiar with the process said that the list was intended to spur a dialogue with New York’s senators — Senate Minority Leader Chuck Schumer and Sen. Kirsten Gillibrand — about a compromise package of nominees.
The White House historically defers to home state senators to recommend US attorney candidates, but there can be more tension when there’s a difference in party. Senators can hold up judicial and US attorney nominees they don’t approve of via a system known as the “blue slip process,” although it’s rarely used for US attorneys. The majority of US attorney nominees announced by the Trump administration so far are from states with two Republican senators.
Negotiating a package of New York nominees would spare the White House a fight with Schumer, who as minority leader has repeatedly sparred with President Trump and was critical of his decision to fire former FBI director James Comey.
***
Berman, who co-leads the New Jersey office of the law firm Greenberg Traurig, would bring Justice Department experience to the job, having served as an assistant US attorney in the Southern District of New York from 1990 to 1994, according to his law firm bio online. In May, multiple news outlets reported that he was under consideration for the New Jersey US attorney position. The Philadelphia Inquirer reported at the time that New Jersey Gov. Chris Christie, who previously served as US attorney, was backing a different lawyer, Craig Carpenito, for the position; no nominee has been announced yet.

If Rudy is promoting his law partner Berman, perhaps he will also be pushing his good friend Jon Sale (one of the finalists) for this District. Sale would be an excellent choice. He's smart, well-liked, and has worked on both sides of the v.

Judge William Pryor on Justice Thomas

Judge William Pryor, a Supreme Court shortlister, recently wrote an essay In the Yale Law Journal on Justice Clarence Thomas and originalism. Here's the conclusion paragraph:

By leading, joining, and occasionally challenging Justice Scalia, Justice Thomas, over the last quarter of a century, has accomplished what no original- ist by himself could: through principled adjudication, proving that the legiti- macy of originalism can be an objective methodology for adjudication. His con- tributions have increased respect for originalism exponentially and made its vocabulary a staple of constitutional adjudication. And for those contributions, all originalists owe him a debt of gratitude.

---

Also, a reminder for those who knew Richard Strafer, his service will be this Sunday, August 6, 10am at Mt. Nebo Kendall, 5900 SW 77th Avenue, Miami, FL 33143

Kevin Newsom confirmed to 11th Circuit

Congrats to my law school classmate Kevin Newsom on being confirmed to the 11th Circuit. The vote was 66-31, which is pretty incredible in this environment. He's very smart and well-qualified.

19 Justices?

19 Justices?  That's what Judge Posner is calling for:

"Mediocre and highly politicized," was the opinion the 78-year-old jurist gave of the justices who sit in D.C. during a recent talk at the University of Chicago.

"We have a very crappy judicial system."

Posner — the most highly cited legal scholar of the 20th century, according to the Journal of Legal Studies — repeated his complaint that politicians are more concerned with appointing "tokens" such as women or Hispanic justices, and with would-be justices' politics than they are with merit.

"If you had 19 members you would inevitably have more diversity," he told Prof. Luigi Zingales during the talk. Posner, who was appointed by President Ronald Reagan, said no president since Herbert Hoover has appointed a Supreme Court justice who "was not in either his personal or his political interest."

"The modern presidents don't think that way, but if the Supreme Court was much larger, they might say, 'Well, OK ... we have 19 justices, 12 of them are highly politicized, but we have these extra 7 seats, so we'll appoint them on the basis of quality,' and that would make a big difference."

Meantime, President Trump may be losing at a bunch of things, but he is winning on judges:

The White House has announced more than two dozen lower court nominees to date, and the Senate Judiciary Committee has been holding hearings and sending nominees to the full Senate for a vote at a regular clip.

Just Monday, after the news broke that White House communications director Anthony Scaramucci was ousted on the 11th day of his tenure, the Senate took a key procedural vote on a federal appeals court nominee out of Alabama, Kevin Newsom. On July 20 — as the White House dealt with fallout from an interview published the night before in which President Trump criticized Attorney General Jeff Sessions — the Senate confirmed Kentucky lawyer John Bush to the US Court of Appeals for the Sixth Circuit, notwithstanding a coordinated, well-funded opposition campaign by groups on the left.

“It’s just been a win on all fronts,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, which supports conservative court nominees.

The administration’s success with judges is about more than the fact that Republicans control the Senate. Lower courts remain mostly of regional interest, despite the fact that federal judges have lifetime tenure and issue rulings that can affect the entire country. Senators defer to their colleagues’ preferred local picks. There is little incentive to interfere, even if, as was true with John Bush, Republicans have concerns about a nominee’s record.

There’s also the fact that Republicans historically have been more organized on judges than Democrats, said David Fontana, a professor at George Washington University Law School who follows judicial nominations. There are numerous interest groups and political factions around issues like health care, he said, but there is a tight-knit community of conservative lawyers who foster and promote court nominees during Republican administrations.