Do you like Gorsuch's writing style?

There has been quite a bit made of Justice Gorsuch's writing style (many do not like it). He wrote two opinions today, and even in a pretty straight-forward opinion sending a case back to the lower courts to address some open questions, he writes with quite a unique style:

The dissent is displeased with our decision on this score, but a contradiction lies at the heart of its critique. First, the dissent assures us that the immovable property exception applies with irresistible force—nothing more than a matter of “hornbook law.” Post, at 3–10 (opinion of THOMAS, J.). But then, the dissent claims that allowing the Washington Supreme Court to address that exception is a “grave” decision that “casts uncertainty” over the law and leaves lower courts with insufficient “guidance.” Post, at 3, 13–14. Both cannot be true. If the immovable property exception presents such an easy question, then it’s hard to see what terrible things could happen if we allow state court colleagues are no less versed than we in “hornbook law,” and we are confident they can and will faithfully apply it. And what if, instead, the question turns out to be more complicated than the dissent promises? In that case the virtues of inviting full adversarial testing will have proved themselves once again. Either way, we remain sanguine about the consequences.

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The Vetting Room's take on 11th Circuit Nominee Britt Grant

President Trump has nominated Georgia Justice Britt Grant to the 11th Circuit.  The Vetting Room has a very informative and lengthy post about Grant.  Here's the intro:

Justice Britt C. Grant is President Trump’s third nominee to the Eleventh Circuit. Like Trump’s first nominee, Kevin Newsom, Grant is a former state solicitor general (Grant of Georgia, Newsom of Alabama). Like Trump’s second nominee, Lisa Branch, Grant worked as a BigLaw commercial litigator and subsequently served as a state appeals courts judge (Grant of the Supreme Court of Georgia, Branch of the Georgia Court of Appeals). Like both Newsom and Branch, Grant is a longtime member of the Federalist Society. Although Grant–if confirmed–will be replacing an Obama appointee, Julie Carnes, the replacement will not likely have an immediate effect on the ideological balance of the court because Carnes herself most frequently votes in divided cases with her more conservative colleagues (as did the judge that Lisa Branch replaced, Frank Hull).

In other news, longtime federal prosecutor Dick Gregorie is retiring. The Herald looks at his career here.

Eleventh Circuit orders en banc hearing on whether “the risk of force clause in 18 U.S.C. sec. 924(c)(3)(B) is unconstitutionally vague in light of Sessions v. Dimaya?”

The original 11th Circuit ruling by Judge Hull (joined by W. Pryor and Tjoflat) is here (U.S. v. Ovalles).

The letter listing the issues before the en banc court is here:

1. Is the risk of force clause in 18 U.S.C. § 924(c)(3)(B) unconstitutionally vague in the light of Sessions v. Dimaya, 138 S.Ct. 2014 (2018)?
2. Should this Court overrule United States v. McGuire, 706 F.3d 1333, 1336-37 (11th Cir. 2013), insofar as it requires applying the categorical approach to determine whether an offense constitutes a “crime of violence” under § 924(c)(3)?

More on Trump's judicial appointments (UPDATED WITH SUPREME COURT RULINGS)

UPDATE.  A bunch of SCOTUS decisions this morning, including the gambling and rental car cases.  Still no Carpenter.   

The Congressional Research Service covers the statistics here.  This is the summary intro:

This report, in light of continued Senate interest in the judicial confirmation process during a President’s first year in office, provides statistics related to the nomination and confirmation of U.S. circuit and district court nominees during the first year of the Trump presidency (as well as during the first year of each of his three immediate predecessors—Presidents Barack Obama, George W. Bush, and Bill Clinton).

Some of the report’s findings regarding circuit court nominations include the following:

 The number of U.S. circuit court vacancies decreased by 1, from 17 to 16, during the first year of the Trump presidency. The percentage of circuit court judgeships that were vacant decreased from 9.5% to 8.9%.
 During his first year in office, President Trump nominated 19 individuals to U.S. circuit court judgeships, of whom 12 (or 63%) were also confirmed during the first year of his presidency.
 Of individuals nominated to circuit court judgeships during President Trump’s first year in office, 15 (79%) were men and 4 (21%) were women.
 Of individuals nominated to circuit court judgeships during President Trump’s first year in office, 17 (89%) were white and 2 (11%) were Asian American.
 The average age of President Trump’s first-year circuit court nominees was 49.
 Of individuals nominated to circuit court judgeships during President Trump’s first year in office, 16 (84%) received a rating of well qualified from the American Bar Association, 2 (11%) received a rating of qualified, and 1 (5%) received a rating of not qualified.
 The average length of time from nomination to confirmation for President Trump’s first-year circuit and district court nominees (combined) was 115 days, or approximately 3.8 months.
 Each of the circuit court nominees confirmed during President Trump’s first year in office was confirmed by roll call vote (and none by unanimous consent or voice vote).
 Of the 12 circuit court nominees confirmed during President Trump’s first year in office, 11 received more than 20 nay votes at the time of confirmation (and of the 11, 9 received more than 40 nay votes).

Some of the report’s findings regarding district court nominations include the following:

 The number of U.S. district court vacancies increased by 38, from 86 to 124, during the first year of the Trump presidency. The percentage of district court judgeships that were vacant increased from 12.8% to 18.4%.
 During his first year in office, President Trump nominated 49 individuals to U.S. district court judgeships, of whom 6 (12%) were also confirmed during the first year of his presidency.
 Of individuals nominated to district court judgeships during President Trump’s first year in office, 37 (76%) were men and 12 (24%) were women.
 Of individuals nominated to district court judgeships during President Trump’s first year in office, 45 (92%) were white, 2 (4%) were Asian American, 1 (2%) was African American, and 1 (2%) was Hispanic.
The average age of President Trump’s first-year district court nominees was 51.
 Of individuals nominated to district court judgeships during President Trump’s first year in office, 26 (53%) received a rating of well qualified, 20 (41%) received a rating of qualified, and 3 (6%) received a rating of not qualified from the American Bar Association.
 Each of the district court nominees confirmed during President Trump’s first year in office was confirmed by roll call vote (and none by unanimous consent or voice vote).
 Of the six district court nominees confirmed during President Trump’s first year in office, two received more than five nay votes.

"Prosecutorial misconduct — especially the unlawful withholding of exculpatory evidence from the defense — is rampant across the country, yet prosecutors themselves are hardly ever held accountable."

That's a quote from this Cato Institute article on prosecutorial misconduct.  This is one of the dirty little secrets of the criminal justice system.  Nothing happens when prosecutors withhold Brady...

Prosecutorial misconduct — especially the unlawful withholding of exculpatory evidence from the defense — is rampant across the country, yet prosecutors themselves are hardly ever held accountable. Internal discipline does little to nothing, criminal prosecutions are incredibly rare, and — thanks to the Supreme Court’s invention of the doctrine of absolute immunity — prosecutors can never be held civilly liable, even for the most egregious, willful misconduct. This is all the more troubling because prosecutors wield enormous power in our criminal justice system, especially given the immense leverage they can bring to bear on defendants to coerce them into accepting pleas. In light of this background, it is crucial for the SJC to issue broad relief — in particular, to issue standing orders that compel pre-plea compliance with the disclosure obligations of Brady v. Maryland, and that provide for meaningful discipline and sanctions if prosecutors fail to meet these obligations.

One major problem is that there is absolutely no deterrence at all, either to prosecutors themselves for the misconduct (if you ask OPR, there has never been an intentional case and nothing even happens even when a judge finds misconduct) or to the cases when misconduct occurs (because the prejudice standard is made to be impossible). Why don’t all prosecutors have open-file, turn over witness statements and grand jury testimony, etc. It’s not because of concerns of witness safety (when is the last time something happened to a witness?); it’s because of the desire to win. The same thing for bail— why ask for detention... not because of any real fear that the defendant will run (that happens in a statistically insignificant number of cases); it’s for a desire to win. The same for arguing for monster sentences after trial. It’s done to convince people to plead. These incentives cause huge problems. 

It's not a surprise that the U.S. has the largest incarceration rate in the world.  The criminal justice system needs to be revamped to address these issues.  Until that time, we need judges to step up -- order disclosure of material (and not just say that the prosecutors know what their obligations are); grant bail (and not detain so many presumed innocent defendants); give reasonable sentences even after trial (so that the risks of trial don't result in 97.5% of cases pleading out, which means that innocent people are pleading).  And on and on.  Please excuse the rant.

Slow SDFLA

Not much going on in the District right now.  Seems pretty quiet.  Last week was the 11th Circuit conference, and Clarence Thomas gave the keynote address.

This Bloomberg article discusses how Justice's personalities come through in Opinions Related to Orders (ORTOs):

The U.S. Supreme Court’s “opinions related to orders” get less attention than their merits opinions, but they give courtwatchers clues about the justices who write them.

Merits opinions set a binding rule for the entire country to follow. Opinions related to orders—ORTOs—are often the thoughts of one justice on a case the court has decided not to take up.

The justices vary quite a bit in how often they write opinions related to orders, Bloomberg Law analysis shows. Since October 2011, Justice Sonia Sotomayor has written 31 opinions related to orders. Justice Anthony M. Kennedy has written none.

“I think it isn’t surprising that there’s some variation between the Justices,” Daniel Epps, a former clerk for Kennedy, told Bloomberg Law. “But I think it is a bit surprising just how much variance there is.”

Interestingly, although Thomas doesn't speak at oral arguments, he comes in second with 24 ORTOs. 

Trump judges

USA Today has a lengthy and interesting story about the judges that Trump has appointed "flexing their muscles."  It starts by saying that their rulings have mostly been conservative (shocker!):

Nearly a year after the first of them won Senate confirmation, 15 nominees have made their way to federal appeals courts, representing perhaps Trump's most significant achievement in his 15 months as president. A dozen more are in the pipeline.

While it's too soon to detect a definitive trend, Trump's judges are making their presence felt through the weight of their votes and the style of their rhetoric.

Judge Amul Thapar of the U.S. Court of Appeals for the 6th Circuit led the way last May and has amassed the largest body of work so far. He helped uphold Ohio's method of lethal injection as well as a Michigan county's practice of opening government meetings with Christian prayers.

Judge James Ho, a more recent addition to the 5th Circuit Court of Appeals, dissented from its refusal to reconsider a challenge to strict campaign contribution limits in Austin, Texas, that he said violate the First Amendment.

Judge Amy Coney Barrett of the 7th Circuit Court of Appeals helped block the U.S. Equal Employment Opportunity Commission's attempt to stop an employer from transferring Chicago-area employees based on their race or ethnicity.

Three judges named by Trump to the 8th Circuit Court of Appeals — Ralph Erickson, Steven Grasz and David Stras — joined in its refusal to reconsider a Missouri inmate's plea to change his method of execution because a rare health condition could make lethal injection too painful. The Supreme Court nevertheless agreed to hear the case next fall.

But then the article explains that it's not always so clear that the judges are going to rule as predicted, and uses an example from the 11th Circuit:

Judge Kevin Newsom of the 11th Circuit joined a three-judge panel's unanimous ruling that an Alabama police department's demotion of a female officer seeking to breastfeed her newborn child was discriminatory. The panel said its holding "will help guarantee women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences."

There is no question that Trump, unlike Obama during his presidency, is focused on judicial appointees:

Since coming to office, Trump has nominated more than 100 federal judges, and the Senate has confirmed 33. Another 12 circuit court nominees and 58 district court nominees are in the pipeline. The speed and efficiency of the process far outpaces past Democratic and Republican administrations.

It helped that Trump inherited more than 100 lower court vacancies, and that Senate Democrats in 2013 changed that body's rules to block Republicans from bottling up nominations with just 41 votes. Now Republicans are in the majority — barely — and have been united on the president's appeals court choices.

Conservatives have hailed them for their relative youth — Gorsuch is 50, and the 15 appeals court judges average 49 — and their adherence to the Constitution. Four of them clerked for the Supreme Court's most conservative justice, Clarence Thomas. Nearly all are white; four are women. 

Included among them are several already being touted by conservatives as potential Supreme Court nominees, including Barrett and Thapar, who is Indian American.

Mary Barzee Flores to challenge Mario Diaz-Balart

And Mary (former Assistant Federal Public Defender and former Obama District Court nominee) came out swinging.  According to Marc Caputo from Politico, who broke the story:

“I’m confident that Mario Diaz-Balart can, should and will be beat this fall. And I’m going to beat him,” Barzee Flores told POLITICO.

“Diaz-Balart has voted repeatedly to rip away Floridians’ health care coverage. He has voted repeatedly with the [National Rifle Association], while taking more of their campaign cash than any other Florida congressman in the last 20 years,” she said. “He denies science even as rising sea levels directly threaten our community. He pays lip service to DREAMers while the Trump administration tears apart families.”

Barzee Flores’ decision to run in Florida’s 25th Congressional District was made at the urging of the Democratic Congressional Campaign Committee, the abortion rights group EMILY’s List and Florida Democrats. None wanted to see Diaz-Balart again escape an election cycle without a major Democratic challenger. All three pledged to financially back her.