BREAKING -- Rodney Smith confirmed

CONGRATS to our newest judge -- Rodney Smith.  He was confirmed 78-18 to fill Robin Rosenbaum's slot. 

Judge Ungaro rules for FDA in fight with stem cell clinic

Interesting case.  The NY Times covers it here:

A judicial ruling this month that will stop questionable stem-cell treatments at a clinic in Florida is widely seen as a warning to a flourishing industry that has attracted huge numbers of patients, who pay thousands of dollars for unproven, risky procedures.

But with little regulatory oversight for the hundreds of clinics operating these lucrative businesses across the country, it’s too soon to tell how far the impact might reach.

The decision, by a federal court on June 3, empowered the Food and Drug Administration to stop U.S. Stem Cell, a private clinic in Sunrise, Fla., from injecting patients with an extract made from their own liposuctioned belly fat.

The clinic had claimed that the extract contained stem cells with healing and regenerative powers that could treat a range of illness and injuries, from back problems to Parkinson’s disease, arthritis, and heart and lung diseases.

But medical experts say there is no proof that these treatments work, and three patients, who each paid $5,000 to be treated at U.S. Stem Cell in 2015, went blind after the fat extracts were injected into their eyes to treat macular degeneration.

In granting the F.D.A.’s request for an injunction against the clinic, Judge Ursula Ungaro agreed with the agency that extracting stem cells from fat requires so much processing that it essentially transforms them into a drug. That alteration firmly places such treatments under the jurisdiction of the F.D.A., which has the authority to regulate drugs.

“There is a reasonable likelihood that the defendants will continue to violate the Food, Drug, and Cosmetic Act,” the federal law that gives the F.D.A. its regulatory authority, Judge Ungaro wrote. She also noted that when the agency warned U.S. Stem Cell about unsafe practices at the clinic, the company responded not by correcting the problems, but by arguing that it was exempt from F.D.A. regulation.

Here's the order.

“Given the number of most-watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold.”

That was RBG speaking at the Second Circuit last week on how the Court so far this Term has been relatively cordial and not split 5-4 (only 11 cases so far). But the gerrymandering case and the census case are still out there with the Term coming to a close.

Lots of other tidbits in this Washington Post article, including Kavanaugh's hiring of all women law clerks, tipping the balance of female law clerks over male for the first time in Court history.

She also said that the retirement of Justice Kennedy was “the event of greatest consequence for the current term, and perhaps for many terms ahead.”

11th Circuit takes grand jury secrecy case en banc

Really interesting issue.  The panel summarized the issue as follows:

In 1946, a crowd of people in Walton County, Georgia gathered as two
African American couples were dragged from a car and shot multiple times.1
Many consider this event, known as the Moore’s Ford Lynching, to be the last
mass lynching in American history. Racial tensions in Georgia were high. African
American citizens were allowed to vote in a Georgia Democratic Party primary for
the first time that year.2 The murders occurred shortly after the primary and
immediately garnered national media attention. National outrage, including
condemnation from then Special Counsel to the NAACP Thurgood Marshall,
ultimately led President Harry Truman to order an FBI investigation. In late 1946,
a district court judge in Georgia convened a grand jury. But after sixteen days of
witness testimony, no one was ever charged. The case remains unsolved.
Over seven decades later, Anthony Pitch, an author and historian, petitioned
the Middle District of Georgia for an order unsealing the grand jury transcripts.
The district court granted his request. The government now appeals, arguing the
district court abused its discretion in unsealing the transcripts. After careful review
and with the benefit of oral argument, we affirm. 

 Politico covers the en banc grant:

A federal appeals court announced Tuesday that its full, 12-judge bench plans to revisit whether judges have the authority to disclose usually secret grand jury information in exceptional cases.
The Atlanta-based 11^th Circuit Court of Appeals said it plans to take up, en banc, a case involving a historian’s request for access to records of a federal grand jury investigation into the 1946 lynching of two African-American couples in Walton County, Ga.
Legal disputes about access to grand jury information are drawing unusual attention at the moment because of a standoff between the House Judiciary Committee and Attorney General Bill Barr over access to various materials related to special counsel Robert Mueller’s Trump-Russia probe.
Part of that fight is a disagreement over whether lawmakers are entitled to see testimony and evidence that is typically kept secret because it was obtained by a grand jury.
The 11^th Circuit’s brief order Tuesday wiped out the victory historian Anthony Pitch won in February, when a court panel voted 2-1, to uphold a lower-court order allowing disclosure of the records.
The Justice Department has steadfastly opposed disclosure in such cases, saying that judges can only permit release through six explicit exceptions to the grand jury secrecy rule. However, government lawyers did not seek en banc rehearing of the decision.
The court’s order Tuesday said an unidentified 11^th Circuit judge acting on his or her own sought a vote on further review of the case. A majority of the court’s active judges agreed.
It’s unclear precisely what triggered the rehearing, but Pitch’s attorney, Joe Bell, told POLITICO he believes it may be some combination of factors including a heated dissent by a district court judge who sat on the 11^th Circuit panel and a conflicting, 2-1 ruling issued in April by the D.C. Circuit on a similar case involving another author, Stuart McKeever. He has asked the full D.C. Circuit to rehear his case, and there was a sign last month that they might do so.
“I know it probably involves the McKeever decision and it might also be that everyone saw what’s going on with Mueller in Washington and they want to come out with some sort of united front,” Bell said.
Whatever the 11^th Circuit ultimately does, it won’t iron out disagreements among courts on the issue.
Other appeals courts, including the New York-based 2nd Circuit and the Chicago-based 7th Circuit, have upheld judges’ right to release grand jury material sought by historians or in other circumstances not mentioned in the rule.

Justice Thomas says he has no stress

Must be nice.

The rest of the lawyers out there are pure bundles of stress. 

Seems like such a weird thing to say, even though it's true.

From SCOTUSblog:

Justice Clarence Thomas told an audience at the U.S. Supreme Court this afternoon that he doesn’t know where rumors of his potential retirement at the end of this term originated.

“My wife gets alerts,” Thomas said, apparently referring to news or web alerts that his spouse, Virginia Thomas, receives. When she showed one such alert to him earlier this term, his response was, “Wow. I didn’t know that.”

“I have no idea where that stuff comes from,” Thomas added during an hourlong conversation with the financier and philanthropist David Rubenstein in the courtroom, before an audience of several hundred members of the Supreme Court Historical Society. “People can say things about you and for you that have nothing to do with you.”

Rubenstein, a trustee of the Historical Society who frequently interviews the mighty and powerful on his show on Bloomberg Television and elsewhere, didn’t specifically ask Thomas to repeat the firm denial of any impending retirement that the justice offered earlier this spring.

Asked about potential retirement at an event at Pepperdine University law school, Thomas said, “I’m not retiring,” and that he had no plans to retire in 20 years or 30 years.

Thomas turns 71 on June 23.

With the court entering the final month of its term, Rubenstein asked Thomas how he relaxes during the term.

“I really don’t have a lot of stress. I cause stress,” Thomas said with a laugh. He goes to Roman Catholic mass, reads and follows the sports exploits of his adopted favorite college, the University of Nebraska. (His wife and mother-in-law attended there.)

 Meantime, check out this weird alignment of Justices, where Ginsburg joins Thomas on a supervised release issue and Gorsuch joins the libs.

What’s left for SCOTUS before their summer break?

Teachers and Supreme Court Justices get the summer off. The Justices have a few more opinions to get out before they hit the beach. CNN covers what’s left, including the census case.  But I’m waiting for this one:

Double Jeopardy (Gamble v. United States)
The Double Jeopardy clause to the Fifth Amendment prohibits more than one prosecution for the same offense. There is an exception, however, that is called the "separate sovereigns exception."
Under the exception, prosecutions are allowed to bring charges for the same offense if the charges are brought by state and federal government. The Supreme Court is being asked to get rid separate sovereigns exception.
Critics contend that in the modern day it leads to harassment of defendants -- especially the poor -- who can't afford to fight on two fronts.
The case could impact President Donald Trump's pardon power as it applies to the Robert Mueller probe. The thinking goes that if he pardoned someone like Paul Manafort, then state officials could not bring the same charge against him. Others say that it would have no impact because state prosecutors would be savvy enough to bring charges for a different offense.The Trump administration argued that the exception should remain on the books.
Why it matters:
On one hand, the federal government and others say this exception is meant to protect the independent power of state and federal governments. It has been a part of the court's fabric for more than 150 years.

Does a college prank really deserve a federal prosecution, conviction, and probation?

So a college freshman snuck into Mar-a-Lago as a joke.

In the old days, he would have been arrested and scared into never doing something like that again.

But not today... now, the feds decided to prosecute him and a judge placed him on probation for a year.

Seems like over-kill.

From the Palm Beach Post:

An apologetic Mark Lindblom on Tuesday told a federal magistrate that he had no evil intentions when he decided to try and enter the club on the day after Thanksgiving while President Donald Trump and his family were visiting. The Washington, D.C. teenager said he just wanted to see if he could do it.

And, according to accounts from his attorney and a federal prosecutor, it was pretty easy.

Visiting his grandparents, who are members of the nearby Palm Beach Bath & Tennis Club, Lindblom simply walked down the beach the two clubs share.

Once at a tunnel under State Road A1A that gives Mar-a-Lago members exclusive access to the beach, Lindblom stood in line with club members who were waiting to pass through a metal detector manned by Secret Service agents, said his attorney Marcos Beaton.

“Mr. Lindblom was wanded by Secret Service agents and he walked on through,” Beaton said.
***
Saying Lindblom made “an exceptionally foolish decision,” he said agents meticulously combed through Lindblom’s background after arresting him wandering on the grass near the club pool. They only thing Lindblom took was pictures on his cell phone, he said.

“We have no reason to believe he had a political, criminal or terroristic purpose,” McMillan said. “It was a foolish decision he did on a lark.”

***
He pleaded guilty to a charge of entering or remaining in a restricted building or grounds - one of two charges Zhang faces. While Matthewman could have sent Lindblom to jail for six months, he opted instead to place him on probation for a year.

Both McMillan and Fridella said they supported the lenient sentence.

Lenient, huh?

Alcee Hastings' trial

The Palm Beach Post just ran a 3-part series about Alcee Hastings.  Part 2 covered his federal trial and acquittal in which he was accused of taking bribes as a federal judge.  Despite his acquittal, he was later impeached (and then became a successful and longtime Representative).  I didn't realize that after the acquittal, two of Hastings' colleagues (William Terrell Hodges and Anthony Alaimo) secretly referred him for investigation by the 11th Circuit, which ended up getting him impeached.

The case against Hastings energized his black supporters, who saw it as yet another example of the white power structure attacking a black man who had risen too high.

Hastings girded himself for the fight, hiring a team of lawyers, including one named Patricia G. Williams, who would see him through this and other difficulties.

The judge ripped the government, saying he was being targeted because of his race and because of his opposition to the Reagan administration.

Three decades later, Hastings maintains that his criticism of the administration, his rulings and his unwillingness to shed friends and associates once he became a judge made him a target.

“I should have been more monastic, but that’s not my style,” he said.

Even before Rico’s indictment, there were holes in the government’s case against Hastings. Big ones.

Investigators could not prove that any of the first $25,000 given to Borders made its way to Hastings. They had not waited to see if Borders would take the remaining $125,000 and give some to Hastings.

That allowed Hastings to argue that Borders was carrying out the scheme on his own, trading on his associate’s position as a judge.

With Borders refusing to testify, Hastings disputed the notion that the two were good friends, saying Borders was merely a political ally with a funny way of speaking, a reference to the taped conversation that played such a big role in the case.

After a two-week trial in federal court in Miami, a jury acquitted Hastings of the charges against him.

Hastings and his supporters were euphoric.

“His victory has more or less opened the door of hope for so many of us who, through innumerable injustice, had come to feel that justice sits atop a mountain out of reach of the poor, the oppressed and the blacks of this nation,” Athalie Range, a black funeral home owner, told The Miami News after the verdict.

In a series of lectures he had published as “The Battles of Hastings” in 1996, one of Hastings’ attorneys, Terence Anderson, said the government knew Borders made false claims about his influence over judges.

“Before the investigation had been authorized, the FBI’s files contained information indicating that Borders had falsely held himself out as having the power to fix cases before other judges, judges whose integrity the government had never questioned.”

Anderson did not elaborate on what that information was, and efforts to reach him were unsuccessful.

For Hastings, the not guilty verdict was the only one a just system could deliver.

“Indeed, they found me not guilty of crimes I never committed,” Hastings would say. “I have not received a bribe. I have not obstructed justice. And I have not betrayed the high office I hold under Article III of the United States Constitution. I am not guilty.”

Hastings had taken the feds’ best shot — and won.

A few weeks after the verdict, 500 people showed up for a victory celebration and fundraiser.

Hastings was in the clear. Or so it seemed.

Judicial colleagues file secret complaint

William Terrell Hodges and Anthony Alaimo weren’t convinced.

Hastings had won his case and was back on the federal bench.

But Hodges and Alaimo, two of Hastings’ fellow judges on the 11th Judicial Circuit, wondered, if Borders were guilty, how could Hastings be innocent?

Under a new set of rules, the two judges, both white, took the extraordinary step of filing a secret complaint requesting an investigation into whether Hastings had lied and falsified evidence during his criminal trial.

The judges’ complaints sparked a three-year investigation led by John Doar, a legendary figure who had worked in the Civil Rights Division of the U.S. Justice Department for seven tumultuous years under Presidents John F. Kennedy and Lyndon Johnson.

An 11th Circuit panel, reviewing Doar’s findings, concluded that Hastings committed perjury, tampered with evidence and conspired to gain financially by accepting bribes.