Senate goes nuclear over Roy Altman

There's a lot of political back and forth over Trump's recent judicial nominees.  Miami is always ground zero, and it was here too as Altman was the first judicial selection to test the nuclear option today.  And boom, the Senate did go nuclear, and the bottom line is that the final vote for Altman will be tomorrow (Thursday) at 11:45. He will very likely be our newest district judge.

Here's Roll Call explaining a little more about the process.  And here are some tweets by the Senate Cloakroom with what happened today:

• Votes Scheduled: At 11:45am TMRW the Senate will proceed to 2 votes: 1.Confirmation of Cal. #32 Altman to be U.S. District Judge for the Southern District of FL
• Invoked, 66-33: Motion to invoke cloture on Executive Calendar #32 Roy Altman to be U.S. District Judge for the Southern District of Florida 

Interestingly, because Altman will be confirmed first, he will have seniority over Ruiz and Smith.

In Defense of Joe Biden

That’s my latest piece in The Hill. The intro:

It’s official: The pendulum of #MeToo claims has now swung too far. When a friendly gesture with no sexual intent is labeled a reprehensible act that should be subject to public shaming and even disqualification from public office, it is time that we all recognize that we are starting to lose perspective.

Let’s be clear before I continue: I am not talking about the crass comments by the current President that it’s okay to “grab [women] by the pussy” or inappropriate sexual relations between then-President Clinton and an intern. Those are clearly beyond the pale. But the “allegations” against Joe Biden — that he touched Linda Flores’ shoulders and kissed the back of her head — are very different.

Biden is an affectionate guy, but in a grandfatherly sort of way. He explained: “In my many years on the campaign trail and in public life, I have offered countless handshakes, hugs, expressions of affection” and never intended to disrespect or cause any harm to Flores or anyone else. But Flores has gone so far as to say that Biden’s intent is irrelevant. Kelly Ann Conway has repeated this argument, saying that it does not matter what Biden intended.

Of course Biden’s intent is relevant. It’s the most important question here. That’s why Stephanie Carter, wife of secretary of Defense at the Pentagon, has had to publicly speak out about the picture of her and Biden that is making the rounds again. As Carter made clear, "The Joe Biden in my picture is a close friend helping someone get through a big day, for which I will always be grateful. So, as the sole owner of my story, it is high time that I reclaim it – from strangers, Twitter, the pundits and the late-night hosts."

Please read the whole thing and lemme know your thoughts...

"I'm saving her for Ginsburg."

That was your President, Donald Trump, when telling confidants his plans for Amy Coney Barrett.  I guess we should not be surprised by the crass comment.

From Axios:

As he was deliberating last year over replacing Supreme Court Justice Anthony Kennedy, President Trump told confidants he had big plans for Judge Amy Coney Barrett.

"I'm saving her for Ginsburg," Trump said of Barrett, according to three sources familiar with the president's private comments. Trump used that exact line with a number of people, including in a private conversation with an adviser two days before announcing Brett Kavanaugh's nomination.

***

Yes, but: There's no guarantee Trump will get another Supreme Court pick. It's very unlikely Ginsburg will retire while he’s in office. And though she's 86 and has had 3 bouts with cancer, she's on the bench now and appears healthy.

Barrett isn't a lock even if Trump does get to make another appointment, the people familiar with his thinking said.
Barrett has the inside track "in a very specific sense," said a source who's discussed Barrett with Trump. "She is the most known quantity right now amongst the women on the list. ... And she also has the inside track in the sense that she was kind of battle-tested for having gone through a confirmation already."
Between the lines: Trump changes his mind all the time, and Barrett would need to undergo a fresh round of vetting to review the rulings and public comments she's made since confirmed to the 7th Circuit Court of Appeals in 2017.

"The Supreme Court judicial selection process with the president is a very fluid one," said a source familiar with Trump's thinking on the subject. "He floats in and out of these discussions over a period of time."
Barrett's education didn't appeal to Trump, according to sources familiar with his thinking. She went to law school at Notre Dame, and Trump prefers candidates with Harvard and Yale on their resumes.

Why it matters: Trump has already pulled the court well to the right. If he gets to replace Ginsburg, especially with Barrett, he would cement a young, reliably conservative majority that could last for decades.

It’s closing time.

At 8:30am tomorrow morning in Judge Scola’s courtroom, the Esformes trial heads to closing arguments. It’s been a long and emotional trial.

It took all day to do the charge conference.

And the defense just filed this doozy of a motion of a dismiss, saying that because DOJ took the position that the entire ACA was unconstitutional. This would include, according to the defense, the provisions that criminalized health care fraud and kickbacks. Judge Scola is giving the government a chance to respond, but after closings.

***

In other (sad) news, Miami Beach legend Seymour Gelber passed away at 99. What an incredible life. The entire Herald obit is worth a read. Here’s the intro:

Former prosecutor, juvenile judge and Miami Beach Mayor Seymour Gelber was a local luminary. But by his own account, he was simply a streetwise kid from Brooklyn who used enough smarts and a little bit of luck to get ahead in life.

Gelber cut a self-effacing figure, disguising a shrewd legal mind that made him a heavyweight in jurisprudence who took his work seriously — but never himself.

“I never liked it,” he quipped about law school. “Never thought I would like to be a lawyer.”

His doubts faded as he ascended the ranks to become a respected jurist who shaped Miami-Dade’s juvenile justice system. He later served as mayor of Miami Beach while the city emerged from a tumultuous period rocked by corruption in the early 1990s. In the coda to his life of public service, Gelber provided a steady hand to guide City Hall.

Gelber died Thursday at age 99, his family said. He leaves behind a legacy that looms large in courtrooms and local government.

Can the President block Twitter users?

It seems like only this President would argue yes...

The Second Circuit seemed skeptical:

He had blocked many critics from his account, which prevents them from directly responding to his tweets.

U.S. District Judge Naomi Reice Buchwald ruled last May that this violated the users’ First Amendment rights, prompting Trump to unblock at least some of these accounts. The decision came in a lawsuit brought by the Knight First Amendment Institute at Columbia University and several Twitter users.

A lawyer for the U.S. Department of Justice, arguing for the president on Tuesday, urged three judges of the 2nd U.S. Court of Appeals in Manhattan to overturn Buchwald’s decision.

While Trump does use his Twitter account for government business, it was not a public forum, the attorney, Jennifer Utrecht, told the judges.

When Judge Barrington Parker asked why blocking users for their political views did not violate the First Amendment, Utrecht said blocking was akin to Trump walking away from a person trying to talk to him on the street.

The judges had fewer questions for Jameel Jaffer, the lawyer for the plaintiffs.

Jaffer said that although Twitter is a private platform, Trump was effectively inviting the public to participate in an open forum by using it for government purposes.

“The whole point of Twitter is to facilitate interactions between users,” Jaffer said.

“Barr and Rosenstein likely made correct legal decision on obstruction”

That’s the title of my piece in The Hill, examining the obstruction of justice statute and recent Supreme Court cases restricting prosecutors from attempting to broadly use it. The intro:

Mueller March Madness! No new indictments, no collusion, no obstruction charges, but no obstruction exoneration either. Upsets, favorites, and Cinderellas … all depending on your political point of view.
The 4-page summary letter of the Mueller report already has been subject to copious punditry, but very little has been said about the law regarding obstruction of justice. Many will criticize the attorney general as being politically motivated for not proceeding on obstruction charges, but his letter tracked the Supreme Court’s limitations on obstruction of justice prosecutions.

In light of a long line of Supreme Court precedent that has limited various obstruction statutes, even reversing convictions, the decision has legal support. To successfully bring obstruction charges, a prosecutor would have to prove that a defendant did more than lie, get others to lie, or even destroy documents.
The special counsel “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.” While the report “does not conclude that the president committed a crime, it also does not exonerate him.” Instead it left “any legal conclusions … to the Attorney General to determine whether the conduct described in the report constitutes a crime.”
Attorney General William Barr, along with Deputy Attorney General Rod Rosenstein, then “concluded that the evidence developed … is not sufficient to establish that the President committed an obstruction-of-justice offense.” The reasons cited in the short letter include:

• “the President was [not] involved in an underlying crime related to Russian election interference”;

• he did not act “with corrupt intent”; and

• there was no “nexus” with the president’s conduct “to a pending or contemplated proceeding.”

Of course none of us knows yet what facts the special counsel found. And it sure sounds like there is quite a bit of evidence “on both sides.” But even assuming some really bad facts for the president, the attorney general made the cautious — and most likely the right — legal decision not to go forward based on recent Supreme Court cases on obstruction.

Please click through and read the whole thing, and give me your thoughts.

A judge, an Olympic gold medalist, and a sports agent

Those were three of the defense witnesses in the Esformes trial on Friday before Judge Scola.  The trial is winding down now and the defense will likely rest this week.  The government will put on a short rebuttal and then closing arguments are expected as early as next Monday.  The gold medalist was Maurice Greene.

In other District news, the Southern District of Florida's Black History Month program was postponed due to the federal government shutdown. It has been rescheduled for Friday, March 29th, at 11:30 am.

Panelists include Dr. Keneshia Grant, Political Science Professor at Howard University, and Karen Andre, an Attorney and political strategist. The panel will be moderated by Magistrate Judge Lisette Reid.

RSVP by today to: FLSD_Program@flsd.uscourts.gov

Legal writing on display in latest en banc back and forth

This time it's a civil case and it's Judge Newsom for the majority, in which ED CARNES, Chief Judge, TJOFLAT, MARCUS, WILSON, WILLIAM PRYOR, JORDAN, BRANCH, and GRANT, Circuit Judges, joined.

Judge Rosenbaum filed an opinion concurring in part and dissenting in part, in which MARTIN and JILL PRYOR, Circuit Judges, joined.

Newsom frames the issue:

Faced with a defendant’s motion for summary judgment, a plaintiff asserting an intentional-discrimination claim under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause, or 42 U.S.C. § 1981 must make a sufficient factual showing to permit a reasonable jury to rule in her favor. She can do so in a variety of ways, one of which is by navigating the now-familiar three-part burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by proving, among other things, that she was treated differently from another “similarly situated” individual―in court-speak, a “comparator.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258–59 (1981) (citing McDonnell Douglas, 411 U.S. at 804). The obvious question: Just how “similarly situated” must a plaintiff and her comparator(s) be?
To date, our attempts to answer that question have only sown confusion. In some cases, we have required a proper comparator to be “nearly identical” to the plaintiff. See, e.g., Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984) (citations omitted). In others, we have expressly rejected a nearly-identical standard. See, e.g., Alexander v. Fulton Cty., 207 F.3d 1303, 1333–34 (11th Cir. 2000). In still others, without even mentioning the nearly-identical benchmark, we have deemed it sufficient that the plaintiff and the comparator engaged in the “same or similar” conduct. See, e.g., Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). And to make matters worse, in still others we have applied both the nearly-identical and same-or-similar standards simultaneously. See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). It’s a mess.
In an effort to clean up, and to clarify once and for all the proper standard for comparator evidence in intentional-discrimination cases, we took this case en banc and instructed the parties to address the following issue:

The Supreme Court has held that in order to make out a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, or 42 U.S.C. § 1981, a plaintiff must prove, among other things, that she was treated differently from another “similarly situated” individual. What standard does the phrase “similarly situated” impose on the plaintiff: (1) “same or similar,” (2) “nearly identical,” or (3) some other standard?

 More:

So, we are left to try to find the sweet spot between Lewis’s squishy not-useless standard and the City’s preferred nearly-identical standard. For reasons explained below, we hold that a plaintiff proceeding under McDonnell Douglas must show that she and her comparators are “similarly situated in all material respects.”

Judge Rosenbaum has this to say about the Majority:

The Majority Opinion tries to hide the “not onerous” elephant in the McDonnell Douglas framework by wishing it away as a mere “descriptor that doesn’t pertain to the substantive standard that governs the prima facie analysis.” Id. In the Majority Opinion’s view, then, the plaintiff’s burden to establish a prima facie case is “not onerous” with respect to something other than her burden to establish a prima facie case under the substance of the standards governing the prima facie case.
Wait . . . what?
Of course, whether standards are onerous or not governs whether the plaintiff’s burden on the prima facie case is onerous or not. It makes no sense to speak of the plaintiff’s prima facie burden as “not onerous” if the plaintiff must, in fact, satisfy an onerous substantive standard to meet her prima facie burden.