The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
How about a debate night drinking game. Take a drink every time the following term is mentioned.
For Joe Biden:
Trump:
Many of us here in South Florida were rooting for Barbara Lagoa. Even though she didn't ultimately get the nomination, what an honor and an experience to have made the 2 person short-list.
In the meantime, the left will have to decide how they want to play the Barrett nomination especially since it's pretty clear that she will be quickly confirmed.
Like many other liberals, I’m devastated by Justice Ruth Bader Ginsburg’s death, which opened the way for President Donald Trump to nominate a third Supreme Court justice in his first term. And I’m revolted by the hypocrisy of Senate Majority Leader Mitch McConnell’s willingness to confirm Trump’s nominee after refusing to even allow a vote on Judge Merrick Garland.
Yet these political judgments need to be distinguished from a separate question: what to think about Judge Amy Coney Barrett, whom Trump has told associates he plans to nominate. And here I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.
I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.
I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.
When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it.
Barrett, a textualist who was working for a textualist, Justice Antonin Scalia, had the ability to bring logic and order to disorder and complexity. You can’t be a good textualist without that, since textualism insists that the law can be understood without reference to legislative history or the aims and context of the statute.
Martinez had the special skill of connecting the tangle of complex strands to a sensible statutory purpose. She clerked for Justice Stephen Breyer, who also believes in pragmatically engaging the question of what a statute is actually trying to do in order to interpret it.
In a world where merit counts, Barrett and Martinez would both be recognized as worthy of serving on the Supreme Court. If a Democratic president with the support of a Democratic Senate asked me to recommend a current law professor for the bench, Martinez would be on my short list.
There is no question that Barrett will move the Court far to the right, which is pretty depressing. But at least she is extremely smart, qualified, and a nice person as described by all who know her. Barrett gave a really nice acceptance speech and said all of the right things:
I previously blogged about the fascinating panel decision here.
In the Brown case, the district court excused a juror who said that he was deliberating based on what "[t]he Holy Spirit told [him]," which was that Brown was not guilty on all counts. Judge Rosenbaum said it was appropriate to excuse the juror because the juror was not praying for guidance but was basing his decision on what was "told" to him by the Holy Spirit. Visiting Judge Conway joined Judge Rosenbaum.
Judge William Pryor wrote a lengthy dissent, arguing that jurors should be able to rely on their religious beliefs.
Now the case goes en banc. Here's what I said about the panel opinion at the time:
For what it's worth, I think both opinions get it wrong. I think an acquittal can be based on anything, including one's conscience. Convictions, on the other hand, cannot be based on anything except the evidence beyond a reasonable doubt. So if God tells a juror to acquit, fine. It would be disqualifying, however, for a juror to convict based on some intuition and not the evidence. Jury nullification is permissible to acquit, but not to convict.
The blog obviously has a local interest in the consideration of Barbara Lagoa as a SCOTUS short-lister. But the other woman on the short list is Amy Coney Barrett, a judge on the 7th Circuit. Here's what she said about replacing her former boss, Justice Scalia during an election year:
And here's a Reason article about her criminal justice record:Trump #SCOTUS front-runner Amy Coney Barrett, when asked whether Obama should be able to appoint a Supreme Court justice in an election year, said it's inappropriate when it would “dramatically flip the balance of power." pic.twitter.com/loLMaLrsUm
— Mark Elliott (@markmobility) September 23, 2020
Appeals court judge Amy Coney Barrett, a leading contender to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, is a popular choice among conservatives. That fact does not, by itself, tell us much about Barrett's treatment of criminal defendants' constitutional and statutory claims.
When it comes to the rights of criminal defendants and the actions of law enforcement agencies, the "conservative" label covers a wide range of attitudes. Although progressives tended to depict Justice Antonin Scalia as an authoritarian ogre, for instance, he sided with defendants in several important Fourth Amendment and Sixth Amendment cases. Neil Gorsuch, the judge President Donald Trump picked to replace Scalia, has shown an even stronger inclination to uphold the rights of the accused and to question the conduct of police officers and prosecutors, repeatedly breaking with fellow conservatives such as Samuel Alito and Clarence Thomas. By contrast, 5th Circuit Judge James Ho, another candidate on Trump's list of potential Supreme Court nominees, showed a troubling deference to law enforcement in a 2019 case involving a man killed by Texas sheriff's deputies.The opinions Barrett has written in cases brought by criminal defendants and prisoners since joining the U.S. Court of Appeals for the 7th Circuit in 2017 present a mixed picture. While she is often skeptical of the government's arguments when it tries to put or keep people in prison, she has sometimes rejected claims by defendants and prisoners that her colleagues found credible.
It is clear from Barrett's record that she does not reflexively side with the government in criminal cases. In a 2019 opinion, for example, she concluded that Drug Enforcement Administration agents violated the Fourth Amendment when they searched a suspect's apartment based on the consent of a woman who answered the door but did not live there.
"Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence?" Barrett asked. "We hold that the answer is no. The officers could reasonably assume that the woman had spent the night at the apartment, but that's about as far as a bathrobe could take them. Without more, it was unreasonable for them to conclude that she and the suspect shared access to or control over the property."
In another Fourth Amendment case, decided in 2018, Barrett concluded that an anonymous tip did not provide reasonable suspicion for police to stop a car in which they found a man with a felony record who illegally possessed a gun. "The anonymous tip did not justify an immediate stop because the caller's report was not sufficiently reliable," she wrote for a unanimous three-judge panel. "The caller used a borrowed phone, which would make it difficult to find him, and his sighting of guns did not describe a likely emergency or crime—he reported gun possession, which is lawful."
In a 2018 case, by contrast, Barrett joined the two other judges on a 7th Circuit panel in rejecting the Fourth Amendment claims of three men who had been convicted of viewing and possessing child pornography after they were identified as users of the dark website Playpen. The FBI, which ran Playpen for about two weeks in 2015 as part of its investigation, identified people who visited the site via tracing software it installed under a warrant issued by a federal magistrate judge in Virginia. The defendants argued that the warrant was invalid because it purportedly covered searches outside the magistrate judge's district.
Writing for the unanimous panel, Barrett said "we need not decide…whether the searches violated the Fourth Amendment." Even if they did, she said, "the district courts did not err by declining to suppress the evidence, because the good-faith exception to the exclusionary rule applies." Even assuming the warrant was invalid, she thought, the FBI could not reasonably have been expected to realize that.
This time, a deep dive, by the New York Times. It starts this way:
As a young associate in a prestigious Miami law firm, Barbara Lagoa took on an unusual pro bono case, one without a supervising partner and against a formidable adversary: the Clinton administration.
Ms. Lagoa represented a relative of a 5-year-old boy found off the Florida coast after his mother had drowned trying to cross over from Cuba. His name was Elián González.
Federal agents would eventually seize Elián and return him to his father in Cuba, setting off political shock waves that arguably cost former Vice President Al Gore the 2000 presidential election when he lost Florida.
“After six months, countless briefs, a few all-nighters, two oral arguments and one midnight raid by armed commandos, we learned what it was like to lose,” Eliot Pedrosa, another lawyer on the team, said at a ceremony last year when Judge Lagoa joined the Florida Supreme Court. The experience of “watching armed federal agents use force to pre-empt process,” he said, was “seared into her soul.”
That formative episode helped shape Judge Lagoa’s career as a federal prosecutor and appellate judge and thrust her into South Florida’s political culture, dominated by Cuban-American Republicans.
It is an electoral dynamic that remains powerful two decades later and has helped Judge Lagoa, who now sits on the United States Court of Appeals for the 11th Circuit, emerge as an attractive choice for President Trump as he considers whom he will name to replace Justice Ruth Bader Ginsburg on the Supreme Court.Trump says he may be meeting with her this week in Miami. The article ends this way:
For the people trying to promote her nomination in South Florida, though, Judge Lagoa’s life story as the daughter of immigrants matters just as much as her record.
Her friends mention her modest upbringing in the blue-collar city of Hialeah. She rode her bike and roller skated around the neighborhood. Her parents saved up to send her to Catholic school. It was a big deal when she went away to New York for law school.
“In the country my parents fled, the whim of a single individual could mean the difference between food or hunger, liberty or prison, life or death,” Judge Lagoa said last year, when she was nominated to the Florida Supreme Court. “Unlike the country my parents fled, we are a nation of laws — not of men.”
Everyone will be talking about whether Trump has enough time and the votes to get someone confirmed in the next couple of months. But before we turn to politics, let's take a moment and remember the incredible woman, an inspiration to so many. What a truly amazing person. RIP.
Justice Ruth Bader Ginsburg, the demure firebrand who in her 80s became a legal, cultural and feminist icon, died Friday. The Supreme Court announced her death, saying the cause was complications from metastatic cancer of the pancreas.
The court, in a statement, said Ginsburg died at her home in Washington surrounded by family. She was 87.
"Our nation has lost a justice of historic stature," Chief Justice John Roberts said. "We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tired and resolute champion of justice."
Architect of the legal fight for women's rights in the 1970s, Ginsburg subsequently served 27 years on the nation's highest court, becoming its most prominent member. Her death will inevitably set in motion what promises to be a nasty and tumultuous political battle over who will succeed her, and it thrusts the Supreme Court vacancy into the spotlight of the presidential campaign.
Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: "My most fervent wish is that I will not be replaced until a new president is installed."
— David Oscar Markus (@domarkus) September 19, 2020
UPDATE -- Chief Judge Moore just issued this new order concerning COVID-19, which seems to suggest that judges are not permitted to hold in person plea or sentencing hearings. Yet there are rumors that the U.S. Attorney's Office will be convening a grand jury in November to start indicting cases that have been backlogged.
ORIGINAL POST:
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10-1
Let’s go Heat!
Have a great weekend.
Here are two great articles about the Heat's incredible run:
2) This one is about what it took to put together this team.
