Happy 13th Birthday to the Southern District of Florida Blog

This blog's first post was July 2, 2005, and we've been going strong ever since -- thanks to you!  Thank you for stopping by and reading.  When the blog first started, there were only a handful of legal blogs (How Appealing, SCOTUSblog, and Underneath the Robes were the main ones).  Since then, many have come and gone.  This blog has had 3,778,606 page views since then.  Pretty cool.

Still, many blogs have moved over to Twitter, and I am thinking about doing the same thing.  I'm interested in your comments.  Would you rather have the blog as a set place to come see posts, or is Twitter more convenient.

Thanks again for reading.

--David

Shortlisters

Most experts are saying that Trump will interview 3-5 candidates for Kennedy's seat.  And most say that those include Brett Kavanaugh, Raymond Kethledge, Amul Thapur, and Amy Coney Barrett.  All highly qualified candidates.

But what about a Floridian?

Trump's list includes two Floridians: Florida Supreme Court Justice Charles Canady and former chief of the Southern District of Florida, Federico Moreno.  When Judge Moreno's name first surfaced on this last back in November, the blog covered it here.

He would be the first Supreme Court Justice to be a Floridian, Venezuelan, former practicing criminal defense lawyer, former assistant federal defender, and UM law grad.

Another name that is not on any of the lists, but should not be counted out is Secretary of Labor, Alex Acosta.  Acosta is the former U.S. Attorney for the Southern District of Florida.  More on that later.

Appoint a Floridian to the Supreme Court.

Thirteen years ago (July 2, 2005), this blog was born with the following post. In light of Justice Kennedy’s retirement, it seems right to repost it now:

Saturday, July 02, 2005

Appoint a Floridian

What better way to start the Southern District of Florida blog than with a post suggesting that the next Supreme Court Justice come from sunny South Florida. A couple months ago, I wrote an op-ed for the Miami Herald suggesting just that. I reproduce it below. Although the op-ed suggests a Floridian in general, the Southern District should be a fertile place for President Bush to look if he is looking (as the rumors suggest) for bright young Hispanic conservative jurists. It was Justice O'Connor, in fact, who suggested that diversity benefited the institution. Here it is:


Appoint a Floridian
BY DAVID OSCAR MARKUS
http://www.markuslaw.com

The nine justices on the U.S. Supreme Court have served together longer than any other nine justices in recent history.

Nevertheless, President Bush may have the opportunity to appoint up to four justices to the court during his second term. Speculation has been increasing ever since Chief Justice William Rehnquist was diagnosed with thyroid cancer, requiring him to work from home and to participate only on a limited basis. The pundits have also pointed to Justices John Paul Stevens, Sandra Day O'Connor and Ruth Ginsburg as potential retirees.

There has been a great deal of discussion about whom Bush should appoint. But perhaps an equally important question is where this jurist should come from. Florida is the best choice.
No Floridian has ever been appointed to the Supreme Court. True, 18 other states are also unrepresented, but Florida's population is more than three times the size of the next largest of the 18, Wisconsin.

The current court is made up of justices from Arizona (Rehnquist and O'Connor), Illinois (Stevens), New York (Ginsburg), Massachusetts (Stephen Breyer), California (Anthony Kennedy), Georgia (Clarence Thomas), Virginia (Antonin Scalia) and New Hampshire (David Souter). Certainly there is a place for a Floridian. Consider the fact that we have produced some of the major cases to go before the court (Bush vs. Gore) and that we have more than 75,000 lawyers and judges to choose from. Only California (55), New York (31) and Texas (34) have more electoral votes than Florida (27).

In 1978, William J. Daniels attempted to discuss why the 19 states were not represented on the court, saying: ``The 19 states which have not yet had a person appointed to the court have tended to be the least populated of their region.''

O'Connor tried to explain it this way: ''The Supreme Court and other appellate courts benefit by having judges from diverse backgrounds and experiences.'' Unfortunately, ``there are fewer people of rural backgrounds to go around, on the bench or elsewhere.''

With all due respect to Idaho and the Dakotas, Florida seems to have bucked the rural label quite some time ago. And as for diversity, there is no more diverse state than Florida.
Back in 1978, Daniels concluded by saying, ``One can reasonably expect that presidents will continue to be concerned with the geographic factor, and that officials from the as yet unrepresented states will continue to call attention to their status when vacancies occur on the court.''

So here's an issue that all Floridians -- Republican, Democrat or independent -- can support: The next Supreme Court justice should come from our great state.

Judge Branch issues first CA11 opinion (we think).

GUEST POST BY STEPHEN E. LUDOVICI

In other news today, it looks like our newest Eleventh Circuit judge has written her first published opinion. In a very short nine-page opinion in Wilcox v. Corrections Corp. of America, Judge Branch affirmed the trial court’s entry of judgment as a matter of law after a jury trial. Other than the fact that the opinion is her first—and a footnote about spelling the appellant’s name—the opinion’s not particularly interesting. Given it’s short length by Eleventh Circuit standards (only nine pages), you’d think that was an “easy case” for the court’s newest member, but Judge Branch’s experience in the Georgia appellate system might suggest otherwise. However it was for Judge Branch, Ms. Wilcox didn’t fare so well, with the Court holding that because her employer had taken prompt remedial action, no damages were available to her under Title VII. Given that Ms. Wilcox won at the Eleventh Circuit on her first go around, see Wilcox v. Corr. Corp. of Am., 603 F. App’x 862 (11^th Cir. 2015), this must feel a little bitter.

As David covered back in March, Judge Branch is the newest member of the Eleventh Circuit bench, taking Judge Hull’s seat. While Judge Branch has issue a few orders in her new position, as far as we can tell, this is her first published opinion that I personally recall. A quick search seems to confirm this, but please drop a tip to David if you know otherwise.

SCOTUS only decides 2 of final 6 decisions on last Monday of June

Today was supposed to be the last day of SCOTUS decisions, but it looks like we will get at least one more decision day... and the big one that everyone is waiting for is the travel ban case.  Today, the Supremes decided an antitrust case 5-4 and the Texas redistricting case 5-4.  In both cases, the conservative Justices were in the majority and the moderates were in dissent.  It shows how big of a different Garland (vs. Gorsuch) would have made to the Court.

SCOTUSblog has all the info here.

Meantime, in the antitrust case, Justice Breyer starts his dissent this way:

For more than 120 years, the American economy has prospered by charting a middle path between pure lassez-faire and state capitalism, governed by an antitrust law “dedicated to the principle that markets, not individual firms and certainly not political power, produce the opti­ mal mixture of goods and services.”

Did he just spell laissez-faire wrong?  Oh boy.

Carpenter wins 5-4

A big win for the 4th Amendment and for privacy rights.  Justice Roberts’ opinion is that cell phones are different.  And you can’t track people indefinitely.  Although the court was divided, I suspect that most Americans would agree with Roberts here.

Those old out-of-date 70s cases don’t work well with new technology.  And as much as Alito and Thomas would like to hold on to those cases, the Court is not going to be handcuffed to them. Alito also complained that there is going to be a “blizzard” of litigation because of the decision.  Why?  Is it so hard for cops to go get a warrant for this material.  If there is a question, get a warrant.  It’s not a big burden.

Quartavious Davis lost this issue before the en banc 11th Circuit court (I argued it for Davis) and the Supreme Court denied cert, which was a huge bummer.  The 11th Circuit, per Judge Hull, felt bound by the third-party doctrine cases from the 70s, like Miller and Smith.  Hull basically wrote an opinion that tracked Alito’s dissent.  The 11th Circuit dissenters, Martin and Jill Pryor, are vindicated.

Here’s the amicus brief we did in Carpenter.

"Well, in Louisiana they'd shoot you."

That was Senator John Kennedy, a Republican from Louisiana during his questioning of Roy Altman at yesterday's hearing.  The exchange went like this:

Kennedy: "Why don't I have a right in the privacy of my home with my spouse to take cocaine? I'm not talking about buying it, that's illegal. I'm talking about I walk into my living room and the cocaine is there."

Altman: "Under the government of Louisiana —"

Kennedy: "Well, in Louisiana they'd shoot you."

Altman: "Then under the government of Florida, since the founding, the states have had police powers to regulate even intrahome conduct. And if it were the federal government, then the conduct would have to have some effect on interstate commerce."

WHAHHHH?!?

That exchange wasn't covered in this article about the hearings:

Roy Altman, who is up for a seat on the U.S. District Court for the Southern District of Florida, served as a federal prosecutor in Miami from 2008 to 2014, before becoming a partner at the Miami firm Podhurst Orseck.
Altman told senators his experience working on a violence reduction program while serving as a federal prosecutor has prepared him for a seat on the federal bench by helping him better understand the people who will come before him in court. As part of the program, Altman gave speeches and participated in career days at public schools in the Miami area.
The program also offered job fairs and other services to people re-entering the community from prison, seeking to cut down on recidivism rates.
“A good judge understands that but for the grace of God, there go I,” Altman said. “That whether it’s a small-time plaintiff, a victim in a case or a criminal defendant, everybody deserves a fair shake. People make mistakes, people take the wrong turn, that doesn’t mean everybody’s evil and I think a district court judge needs to recognize that every single day.”
***
The committee also heard from Judge Rodolfo Ruiz, who is nominated to a seat on the U.S. District Court for the Southern District of Florida. Ruiz has served as a Florida state court judge since 2012, first as a county court judge for the Eleventh Judicial Circuit of Florida and later as a circuit court judge.
A Federalist Society member, Ruiz previously worked as a state prosecutor and as an associate at the Miami firm White & Case.
Ruiz told Sen. Chuck Grassley, the Iowa Republican who chairs the committee, that his lengthy experience both as a lawyer and a judge will serve him well on the federal court.
He also spoke highly of his experience training judges on implicit bias while on the state court, telling Sen. Mazie Hirono he thinks all judges could benefit from similar lessons.
“I can tell you personally, for me, it has been extremely important, especially in matters of sentencing,” Ruiz said. “And as we always say, it does not mean you have a racial problem, you just need to be aware when you’re sentencing that you take the time to pause and make sure you’re not sentencing based on factors, for instance, that have no bearing on the crime at issue.”

Senate to hold hearings this morning on judicial nominees Ruiz and Altman

Rodolfo Ruiz and Roy Altman have their Senate hearings this morning at 10am.  You can watch here.  No word on why Rodney Smith isn’t on the agenda this morning.

Meantime, Senator Flake is holding up Britt Grant’s nomination to the 11th Circuit.  But it’s apparently related to another issue and is not a problem with her, but Flake isn’t saying what it is.

Finally, the 11th Circuit decided to hear this suppression case en banc.  Surprise, surprise, it was a defense win with the panel.  Still no en banc hearings where the prosecution wins with the panel.