Insanity

I'm really at a loss on how to blog about yesterday.  It's just insane.  The WSJ has an article about violence over the years at the Capitol, but nothing like this:

Over its two centuries as the seat of government, the U.S. Capitol has seen countless protests, along with occasional bombings, shootings, fights between lawmakers and, in 1814, conflagration at the hands of British troops. Until Wednesday, however, it had never been occupied by a mob determined to obstruct the constitutional process.
“The Capitol was a symbol of protest during the Vietnam War,” said Donald Ritchie, historian emeritus of the U.S. Senate. “We had farmers who protested and set their sheep loose on the Capitol grounds,” pro- and anti-Shah demonstrators during the Iranian revolution of the 1970s and, in 1932, the Bonus Army of World War I veterans who occupied the Capitol steps to demand their pensions, Mr. Ritchie said.
“When Congress voted down the pensions and then immediately adjourned, the marchers stayed outside and sang ‘America.’ That’s a lot different than what’s going on now,” Mr. Ritchie said.
“I’ve never encountered a protest where people broke into the building and tried to stop the proceedings,” he said. “That’s totally out of character for American protests.”
Despite its place at the heart of government and its symbolic power as an emblem of American democracy, for most of its history the Capitol has been lightly guarded. Members of Congress have been reticent to put up barriers to the public they represent, and Americans have expected access to a pre-eminent public space.

Trump has been booted from Twitter for 12 hours.  Will he be booted from the White House before Jan. 20?

Biden plans to nominate Merrick Garland to be AG.  He will, I'm sure, prosecute the terrorists to the full extent of the law.

In other news, there is a push for Justice Breyer to retire.

News and notes

Two big ones:

1.    Law360 has listed District Judge Darrin Gayles on the list of judges who may be nominated to the 11th Circuit under a Biden administration:

ELEVENTH CIRCUIT

Leslie Abrams Gardner, an Obama appointee in the Middle District of Georgia, was previously a federal prosecutor and Skadden Arps Slate Meagher & Flom LLP associate. She clerked for Maryland U.S. District Judge Marvin J. Garbis after earning degrees from Yale Law School and Brown University.

Darrin P. Gayles joined the Southern District of Florida on Obama's appointment. The former state judge and federal prosecutor earned degrees from the George Washington University Law School and Howard University.

Abdul K. Kallon sits in the Northern District of Alabama, where Obama appointed him before nominating him to the Eleventh Circuit in February 2016. The GOP-led Senate did not act on his nomination. The former Bradley Arant Boult Cummings LLP partner clerked for Alabama U.S. District Judge U.W. Clemon after earning degrees from the University of Pennsylvania Law School and Dartmouth College.

Leigh Martin May is another Obama pick in the Northern District of Georgia. The former Butler Wooten & Fryhofer LLP partner clerked for Georgia U.S. District Judge Dudley H. Bowen Jr. after earning degrees from the University of Georgia School of Law and Georgia Tech.

Merritt E. McAlister is a University of Florida law professor focused on court design, nonprecedential decisionmaking and LGBTQ issues. The former King & Spalding LLP partner clerked for Justice John Paul Stevens and Eleventh Circuit Judge R. Lanier Anderson after earning degrees from the University of Georgia School of Law and Rice University. The 2002 college graduate is about 40, making her one the youngest people on this list.

Mark E. Walker is an Obama appointee in the Northern District of Florida. The former state judge spent time as a state public defender and in private practice with small firms. He clerked for Eleventh Circuit Judge Emmett Ripley Cox and at the Florida Supreme Court after earning both law and bachelor's degrees from the University of Florida.

2.    The Government has bought the site for the new Ft. Lauderdale courthouse (see Law.com article here): The 3.3-acre site is comprised of seven lots just south of the Tarpon River and east of Southeast Third Avenue and cost 13.6 million.

Phone arguments in the Supreme Court

The WSJ Journal covers the 2020 phenomenon here, and SCOTUSBlog has a bunch of the Art Lien sketches here. From the WSJ:

Neal Katyal has argued 43 cases before the Supreme Court. Until the coronavirus pandemic hit, he hadn’t once enlisted his son as an assistant.

Now, Mr. Katyal and other lawyers appearing in the nation’s highest court have to argue their cases remotely, which often means from home. In November, as Mr. Katyal prepared in his home office to represent the city of Philadelphia in a case about religious objections to same-sex parents, he worried about the street noise.

So he gave his 19-year-old son $100 and instructed him to go outside and dole out cash to quiet down any noisemakers. Sure enough, minutes before the hearing began, a truck rolled up, idling loudly.

“Oh my God, the justices are going to be so mad at me,” Mr. Katyal, who served as acting solicitor general in the Obama administration, recalled thinking. Fortunately, the truck drove away without his son having to intercede.

For the nation’s Supreme Court lawyers, being freed from the decorous norms of appearing in person before the high court has brought a new set of questions. Where to work? What to wear? What kind of phone to use? And how to stay in order in a telephone courtroom?

Some advocates have tried to replicate the high court’s pomp, dressing in business attire and setting up mock courtrooms to evoke the real-life setting. Others have donned sweatshirts and planted themselves behind messy desks.

Although I didn't get a chance to call in to SCOTUS, I did have a telephone argument, as well as a Zoom argument, in the 11th Circuit this year.  Zoom was definitely preferable as you actually get to see the judges instead of just listening.  I have another one coming up in February, so it looks like Zoom for the foreseeable future.  

I like these two sketches from Lien on both ends of the formality spectrum:

As for me in the 11th, I wore a jacket, but no tie, for the phone argument and a regular old suit and tie for the Zoom argument.

 

Happy new year!

 Chief Justice Roberts has welcomed in the new year with the 2020 year-end report here.  It ends this way:

In focusing on the dedicated work in courts, I do not want to minimize the hardships and suffering caused by the pandemic. Like others throughout the country, judiciary employees have contended with illness and loss. My thoughts are with them. This year, more than ever, I am privileged and honored to thank all of the judges, court staff, and other judicial branch personnel throughout the Nation for their outstanding service. Best wishes—and good health—to all in the New Year. 

John G. Roberts, Jr.,  Chief Justice of the United States  

Last post of the year

Happy New Year to all the SDFLA readers.  I really appreciate you and your comments, even the crazy anonymous ones.

If you are looking for some holiday reading, here are some articles:

1.    Esformes to continue with his appeal despite commutation, via Law.com.

2.    Prof. Tribe argues that Trump could obstruct justice with some of his pardons.

3.    Prof. Dershowitz and Prof. Hellman debate life tenure for SCOTUS Justices.

4.    A mural of RBG in Westport, MO, was vandalized.  So many mean and bad people out there... Here's hoping for better in 2021.

Quiet week

 It's a quiet week in courthouses around the country.  But that didn't stop Rumpole from going after the Florida Supreme Court for doing away with Times New Roman in this order.  It's a really strange order that goes into effect at 12:03 January 1.  12:03??  It also requires two awful fonts -- Arial or Bookman Old Style.  Weird.

But Times New Roman is a bad font for legal documents.  The U.S. Supreme Court uses Century Schoolbook, and that's the font that should be the default for all legal pleadings.  There's lots out there explaining why Times New Roman is terrible (here, here, here, and here for example).

Anyway, this is what you get when it's a slow court week.  

Happy Holidays

I hope everyone has a wonderful holiday season.

It's been an absolutely crazy year.  One of the issues that has come up is whether local governments can set curfews during the pandemic.  Judge Raag Singhal heard a challenge from some Broward bars and restaurants to the Broward midnight curfew, and they won.  From the Sun-Sentinel:

A federal court has rejected Broward County’s curfew on bars and restaurants, raising the possibility that nightclubs in much of Florida could operate through the night as COVID-19 rages.

The court specifically cited Gov. Ron DeSantis’ order in September that removed all restrictions on bars and restaurants as the state moved to Phase 3 of the coronavirus recovery.

Broward County’s rules, prohibiting the sale or alcohol between midnight and 5 a.m., violate the governor’s order and are “speculative and arbitrary,” wrote U.S. District Judge Raag Singhal of the Southern District of Florida.

Since DeSantis reopened the economy, COVID-19 cases have soared around the state, particularly in South Florida. Crowds of maskless partiers have become common in the region’s popular entertainment districts.

A holiday miracle (UPDATED 12/24)

President Trump commuted Phillip Esformes' 20 year sentence today:

Philip Esformes – Today, President Trump commuted the term of imprisonment of Philip Esformes, while leaving the remaining aspects of his sentence, including supervised release and restitution, intact. This commutation is supported by former Attorneys General Edwin Meese and Michael Mukasey, as well as former Deputy Attorney General Larry Thompson. In addition, former Attorneys General Edwin Meese, John Ashcroft, and Alberto Gonzalez, as well as other notable legal figures such as Ken Starr, have filed in support of his appeal challenging his conviction on the basis of prosecutorial misconduct related to violating attorney-client privilege.

While in prison, Mr. Esformes, who is 52, has been devoted to prayer and repentance and is in declining health.

Fascinating. Some open questions -- does the appeal continue because he is still on supervised release? Does this apply to the hung count as well or is that still alive? In any event, this is HUGE news in a case that the government touted at the time as the largest health care fraud case in history and one in which he was serving a 20 year sentence.   

12/24 UPDATE -- Trump issued more pardons, including for Mary McCarty, Cesar Lozada, and James Batmasian.  From the press release:

Mary McCarty — President Trump granted Mary McCarty a full pardon. Former Florida Attorney General Pam Bondi and Christopher Ruddy are among those supportive of Ms. McCarty. Ms. McCarty was a longtime public servant in Palm Beach, Florida, serving as one of its County Commissioners. In 2009, she pled guilty to one count of honest services fraud. The Supreme Court has since interpreted that statute more narrowly, meaning that Ms. McCarty’s conduct might not be criminally prosecuted today.

Cesar Lozada — President Trump granted a full pardon to Cesar Lozada. This act of clemency is supported by U.S. Representative-elect Maria Elvira Salazar and members of Mr. Lozada’s community. Mr. Lozada, an immigrant from Cuba, started a small business cleaning and servicing pools in Miami-Dade County. Since then, his business, now a pool equipment company, has grown and employs dozens of people. Today’s pardon addresses a mistake Mr. Lozada made in 2004 of conspiring to distribute marijuana, for which Mr. Lozada took full responsibility, served his sentence of 14 months in prison and 3 years supervised release, and paid a $10,000 fine. Mr. Lozada volunteers on weekends at a charity mission and serves food to the poor.

James Batmasian — President Trump granted a full pardon to James Batmasian. Mr. Batmasian’s pardon is supported by Representative Brian Mast, Alice Johnson, and former Masters Champion Bernhard Langer, among many others from the South Florida community that Mr. Batmasian has done so much to serve through his extensive charitable works.

Mr. Batmasian runs an extensive property management business in South Florida. Over a three-year period from 2001 to 2003, Mr. Batmasian made overtime payments without withholding for income taxes or FICA contributions. While illegal, Mr. Batmasian recorded all of these payments and made no attempt to hide them when confronted by IRS investigators. In 2008, Mr. Batmasian pled guilty to willful failure to collect and remit payroll taxes. Mr. Batmasian accepted full responsibility for his actions, fully repaid the IRS the money he owed, and served his 8-month sentence.