ACB to be confirmed Monday

 The WaPo has the story here:

Judge Amy Coney Barrett’s nomination broke through one more hurdle ahead of her all-but-assured installation to the Supreme Court as the coronavirus pandemic — which has inextricably been intertwined with the story of her nomination — once again intersected with her confirmation fight.

Senators voted around 1:30 p.m. in a rare Sunday session, 51 to 48, to advance her nomination to replace the late Justice Ruth Bader Ginsburg. The final confirmation vote for Barrett is expected Monday night, putting her in position for a first full day as a justice as early as Tuesday and as the court continues to hear election-related legal challenges ahead of Nov. 3.

“We made an important contribution to the future of this country,” Senate Majority Leader Mitch McConnell (R-Ky.) said Sunday, praising Barrett as a “stellar nominee” in every respect. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”

That last quote is interesting...

Meantime, ACB was asked about the Supreme Court's "shadow docket." If you are interested, you should read this entire post from SCOTUSblog.  Here's the intro:

Near the end of two meandering days of questions at last week’s Senate hearings for Amy Coney Barrett, Sen. Richard Blumenthal (D-Conn.) asked a question that probably has never been asked at any other Supreme Court nomination hearing.

“Are you aware of the Supreme Court’s – as it’s called – shadow docket?” he asked.

Barrett, who clerked for Justice Antonin Scalia, said she was. “The shadow docket has become a hot topic in the last couple of years,” she added.

Barrett is right. In fact, in just the last few months, the court has issued emergency rulings on coronavirus policies, immigration restrictions, capital punishment, access to abortion, the U.S. census and procedures for the upcoming election. All of those rulings have been part of the court’s shadow docket.

The court itself would never use that term. Law professor William Baude coined it in 2015 to refer unofficially to the body of orders issued by the Supreme Court outside the formal opinions in the 70 or so cases in which it hears oral argument each term. Some of those orders are peripheral and procedural. But others resolve, at least temporarily, contentious policy disputes or matters of life and death. And this year, the shadow docket is taking on more significance – and getting more attention – than it ever has before.

Concerns about the shadow docket relate primarily to a special system that allows litigants to seek emergency relief from the Supreme Court in the middle of ongoing litigation. Under normal procedures, a case reaches the justices only after full consideration and final decisions by a trial court and an appeals court – a process that usually takes months, if not years. But the shadow docket gives litigants a potential shortcut: When a lower court issues a ruling (even a preliminary ruling that does not decide the full case), the losing side can ask the Supreme Court to order an emergency “stay” of that ruling. A stay, if the justices issue one, freezes the lower court’s ruling, stripping it of force while the litigation proceeds. By preserving the status quo as it existed before the lower court’s ruling, emergency stays can favor litigants who hope to run out the clock.

Traditionally, litigants must satisfy a high legal standard to earn an emergency stay. Among other things, they must show that they would suffer “irreparable harm” if the lower court’s ruling were left in place. That onerous standard is meant to reserve this form of relief for circumstances in which the court’s immediate intervention is needed to prevent extraordinary consequences. Emergency stays, everyone agrees, should not be a way to short-circuit the normal appeals process. But as the number of these requests has grown in recent years (including a flurry of such requests from the Trump administration), Justice Sonia Sotomayor has argued that the court itself has tacitly lowered the bar for litigants to receive emergency stays on the shadow docket.

News & Notes

1.    Another debate tonight.  This time with a mute button.  Fun times.

2.     Obama goes after Trump.

3.    ACB takes next step to confirmation.

4.    Wear a mask, even Chris Christie says so.

5.    Jury trials are off till April, but we're making grand juries come in starting in mid-November. Instead of 11 GJs, there will be 2.  And they will meet two days a week.  

 6.    Transitions is holding its annual fundraiser today, virtually.  They are a good group who needs your help.

 

Attorney Aaron Honaker arrested for bank robbery

Another Miami story.

Here's the Herald:

A Coral Gables attorney was called a “serial bank robber” by the FBI, which believes he robbed five banks since Sept. 30 before his Tuesday night arrest.

The agency said Miami resident Aaron Honaker, 41, was headed into a bank when Coral Gables police arrested him. Honaker’s first appearance in Miami federal court is set for Wednesday afternoon.

***

Honaker’s Florida Bar entry says he’s with the firm of Martinez Morales and has no Bar discipline cases in the last 10 years. Court documents say he previously worked at Greenberg Traurig. He joined the Bar in 2008, two years after graduating from Duke University School of Law.

Court packing

 There's been a lot of debate about packing the Supreme Court.  Most Americans are against it, and according to a recent poll, 51% of Americans want ACB confirmed. That said, here's an interesting essay from Charles Fried about why Biden should do it if SCOTUS goes too far.  It ends this way:

But before going forth on any enlargement plan, a Biden administration would do well to see if the Supreme Court might not heed the lesson of history. Consider the well-known episode indelibly judged as President Franklin Roosevelt’s “failed” court packing plan. Mr. Roosevelt waited to propose his “Judicial Procedures Reform” legislation until 1937, after his first four years in office during which the reactionary Supreme Court majority relentlessly obstructed desperately needed experiments to combat the Great Depression.

President Roosevelt’s move is viewed as a rare failure by a master politician. But was it? Immediately after his proposal was unveiled, the court ruled 5 to 4 that the Wagner Act, restructuring American labor law and relations, was constitutional, and a spate of pro-New Deal decisions followed. The very threat of court packing and the passage of time made this “nuclear option” unnecessary.

Let’s see whether the current Supreme Court majority overplays its hand. If it does, then Mr. Biden’s nuclear option might not only be necessary but it will be seen to be necessary.

In local news, if you are looking for Chief Judge Moore's Order postponing jury trials until April 2021, here ya go.

Who is left on SCOTUS from Bush v. Gore?

Billy Corben's and Alfred Spellman's new documentary 537 Votes has me thinking Bush v. Gore...

Only Justices Thomas and Breyer remain on the Court from that time.  But two current Justices (Roberts and Kavanaugh) and one soon to be Justice (Barrett) all worked for the Bush team.  From CNN on ACB:

Barrett wrote on the questionnaire she submitted to the Senate for her Supreme Court confirmation review, "One significant case on which I provided research and briefing assistance was Bush v. Gore." She said the law firm where she was working at the time represented Bush and that she had gone down to Florida "for about a week at the outset of the litigation" when the dispute was in the Florida courts. She said she had not continued on the case after she returned to Washington.

During her hearings this week, she told senators she could not recall specifics of her involvement.

"I did work on Bush v. Gore," she said on Wednesday. "I did work on behalf of the Republican side. To be totally honest, I can't remember exactly what piece of the case it was. There were a number of challenges."

SDFLA trials suspended until April 2021

 But grand juries are coming back in November instead of January as originally planned. That’s the word out of the judges’ meeting today but no official order yet. 

District Judge in L.A. dismisses case with prejudice for speedy trial violation

 Oh wow, this Order is worth a read.

I consider the trial by jury as the only anchor, ever yet imagined by man, by which a
government can be held to the principles of its constitution.
–Thomas Jefferson1

The United States Constitution protects our fundamental freedoms and liberties. One of the most important rights guaranteed by the Constitution is the Sixth Amendment right of the accused to a public and speedy trial. It protects against undue and oppressive incarceration prior to trial and it allows the accused the ability to defend himself against the criminal charges before evidence becomes lost or destroyed and witnesses’ memories fade. But the Sixth Amendment protects much more than just the rights of the accused. It also protects the rights of all of us. It gives each of us called for jury service a voice in our justice system. And it holds the government  accountable to the principles of the Constitution. Thomas Jefferson and the other Framers of the Constitution wisely recognized that without jury trials, power is abused and liberty gives way to tyranny. Given the constitutional importance of a jury trial to our democracy, a court cannot deny an accused his right to a jury trial unless conducting one would be impossible. This is true whether the United States is suffering through a national disaster, a terrorist attack, civil unrest, or the coronavirus pandemic that the country and the world are currently facing. Nowhere in the Constitution is there an exception for times of emergency or crisis. There are no ifs or buts about it. Sadly, the United States District Court for the Central District of California has denied Defendant Jeffery Olsen his Sixth Amendment right to a public and speedy trial on the criminal charges that were filed against him in this case. Specifically, the Chief Judge for the Central District refused to summon the jurors necessary to conduct Mr. Olsen’s trial that was scheduled for October 13th of this year, believing it was too unsafe to conduct the trial during the coronavirus pandemic even if significant safety precautions were in place. Most troubling, the Chief Judge refused to summon jurors for Mr. Olsen’s trial even though grand juries have been convening for months in the same federal courthouse in Orange County where his trial would take place and state courts just across the street from that federal courthouse are conducting criminal jury trials. Clearly, conducting a jury trial during this coronavirus pandemic is possible. Yet the Central District prevented the Court from even trying to do so for Mr. Olsen. Because the Central District denied Mr. Olsen a public and speedy trial under the Sixth Amendment, this Court now must dismiss the indictment against him.

 

 The L.A. Times covers it here:

A federal judge in Santa Ana on Wednesday dismissed an indictment against a Newport Beach physician accused in a drug distribution case, ruling that his constitutional rights to a jury trial were denied due to an order barring trials in the federal courthouse in the Central District of California during the COVID-19 pandemic. U.S. District Judge Cormac Carney dismissed the indictment against Jeffrey Dove Olsen with prejudice, so prosecutors could not just file another case against him or seek another indictment from a grand jury. Prosecutors could appeal the ruling with the U.S. 9th Circuit Court of Appeals. Olsen was indicted in July 2017 on 35 counts that alleged he prescribed and distributed “large amounts of oxycodone, amphetamine salts, alprazolam and hydrocodone to confidential sources, an undercover agent and numerous addicts without a legitimate medical purpose over the course of three years,” according to federal prosecutors who said two of the doctor’s patients died from overdoses of pain medication.

The issue came to a head this week when Olsen refused to waive any more time for his trial, but U.S. District Judge Philip S. Gutierrez, the chief judge of the Central District, refused to budge on the prohibition of jury trials at this time.

“Quite frankly, the court is at a loss to understand how the Central District continues to refuse to resume jury trials in the Orange County federal courthouse,” Carney wrote in his ruling as he noted various other federal agencies have offices that are open and that first responders still report to work, as well as employees in essential businesses.

“Orange County restaurants are open for outdoor dining and reduced-capacity indoor dining,” Carney added. “Nail salons, hair salons, body waxing studios, massage therapy studios, tattoo parlors and pet groomers in Orange County are open, even indoors, with protective modifications.”

 

Judge like a champion today

Apparently, Judge Amy Coney Barrett was given a sign for her chambers from judge Don Willett that says, Judge Like A Champion Today (which is a play on the sign that Notre Dame players hit on the way onto the football field).  There's another judge that has that same sign -- Judge Like A Champion Today -- in his chambers and has had it since his law clerks got it for him in 1998: Judge Moreno.

 

7/ Judge Don Willett (5th Cir., fka @JusticeWillett) sent #AmyConeyBarrett a memorable gift for chambers: pic.twitter.com/l0BqemSGY1

— David Lat (@DavidLat) October 12, 2020