August in Miami

It's the last stretch of summer.  

And elections are coming up.

It's brings up the age old questions about whether judges should be elected or appointed. 

There's really no good answer.

But when you look at some of the challengers to our good judges, it looks like appointment may be the better option.

Check out the Captain's post about the challenger to a really good judge -- Lody Jean. 

Hard to imagine that the challenger will win, but in a judicial race, anything is possible.

On the other end of the spectrum, Justice Jackson is gearing up for her first term in October.

Here's Empirical SCOTUS with a preview:

The overall picture from these data conform more to the picture painted by the JCS Scores than to that painted by the campaign finance scores.  The picture is of a liberal judge, not as liberal as Justice Sotomayor, and more likely a moderate with a similar ideological position to that of Justice Kagan.  Even though we lack complete information on which to formulate accurate predictions of how future justices will vote when on the Court, this more refined way of viewing Brown Jackson’s lower court record should give a more complete picture than other available methods.

 

Anyway, we have a few weeks left until school starts. Let's enjoy the last few weeks of summer.

Justice Alito again shows his true colors

 For a sitting Justice to give remarks like this is extremely concerning.  

In his Rome speech on religious liberty, Justice Alito mocked "foreign leaders" who condemned his opinion overturning Roe v. Wade, including Boris Johnson, Macron, Trudeau, and ... Prince Harry.

Of Boris, Alito quipped: "He paid the price." https://t.co/NPqalw0KA6 pic.twitter.com/xC0qguZ31n

— Mark Joseph Stern (@mjs_DC) July 28, 2022

Here is a Slate piece discussing the bizarre remarks:

It speaks volumes about Samuel Alito that, in the face of international outrage over the impact of this ruling on the lives of millions of women, he centered himself and his own feelings. His snarky little potshots at Prince Harry and Boris Johnson were not so much “jokes” about world leaders as personal petulance over international criticism, cloaked in the insistence that Alito doesn’t care what these  world leaders think of him.

But to focus on Alito trolling American women, reproductive justice advocates, his liberal colleagues on the bench, and his international critics is to take his feeble bait. Alito is quite transparent about the fact that he delights in disapproval. He invites it! He welcomes it! His “comedy” is actually just a distraction from his gleeful effort to decimate whatever remaining legitimacy the Supreme Court still possesses in the eyes of the secular, liberal world order. Focus on that fact and there is really nothing hilarious to report from Rome at all.

For starters, there is the breathtaking conflict of interest at work when a justice gives faith-based speeches at faith-based events sponsored by faith-based parties who file briefs before the court. We only found out about this speech a week later when Notre Dame released the video, because the justices have no obligation to publicize or record their public speeches. The Rome event’s sponsor, Notre Dame Law School’s Religious Liberty Initiative, was founded about four months before Justice Amy Coney Barrett joined the Supreme Court in 2020. As Gabe Roth of Fix the Court, a nonprofit that promotes judicial ethics reforms, noted in an email Thursday, RLI and its affiliated professors “have filed amicus briefs in several SCOTUS cases, and they have a near-perfect record.” (Naturally, these professors filed a brief in Dobbs v. Jackson Women’s Health Organization urging the reversal of Roe.) As Roth further pointed out, we won’t know if RLI financed the trip until mid-June 2023, when it must be disclosed under current law. For now, the image of a tuxedo-clad Alito chumming it up with the same conservative lawyers who are involved in cases before the court creates the unseemly impression of judicial indifference toward basic judicial ethics rules.

And he wonders why our citizens don't trust the Court.

The conclusion to the Slate piece:

If you are not very frightened by the prospect of a Supreme Court justice crossing the ocean in order to quote the Gospels to religious adherents of his own faith, who have business before the court, as he excoriates all who do not share his personal view of the primacy of religion as an organizing force in a political democracy, it’s difficult to know what could alarm you. The Framers attempted to strike a careful balance between religious liberty and secular moral values. Alito would like you to know that for the foreseeable future, the latter is the enemy, and will be vanquished and mocked.

Judge Hanzman goes old school

Back in the day during the hot summer months in Miami state court, suits were optional.  And most judges shut down entirely in August.  We haven't gone back that far yet, but Judge Hanzman did issue this order, letting lawyers know that they could go business casual during the claims process of the Champlain Towers case (hat tip Rumpole).  Thoughts?

 

Order 7-21-2025 (1) by Anonymous PbHV4H

Congratulations to Magistrate Judge Ryon McCabe

He had his investiture in West Palm Beach last week, and by all accounts, it was a big hit. Congrats!

 

Many Roads Should Lead to the Courthouse

by Michael Caruso 

I recently had the pleasure of speaking with U.S. Attorney Tony Gonzalez to several law students participating in Judge Bloom’s Judicial Internship Academy this summer. Judge Bloom’s efforts are truly a force for good by opening this fantastic opportunity for many more law students. A judicial internship during law school provides students with a direct insight into the judicial process and is a valuable and enriching experience. The students gain practical experience by attending judicial proceedings, performing legal research, and providing other assistance to the judge. During the summer, the internship also exposes the students to practicing lawyers. And, of course, the internships may broaden the future employment opportunities of these students. I found the students to be smart, engaged, and committed. They also happened to be quite diverse.

 

A recent article published in the Notre Dame Law Review Reflection makes the case for diversity in law clerk hiring as “an imperative that basic democratic principles compel. The importance of diversity is not in demographics alone or the legitimacy that may flow from those numbers. Rather, the purpose is to ensure that the judiciary benefits from a range of perspectives that more accurately reflect those who are affected by the law.”

 

According to the article, in 2000, over 90% of all federal appellate judges were white. Today, 77% of federal appellate judges are white. “Although the past twenty-two years have brought modest changes to the racial composition of federal judges, the slight demographic shift has yet to trickle down to the law clerks that staff their chambers. Over time, the voices in those chambers remain increasingly white. In 2006, 74.5% of law clerks were white. In 2019—the most recent data available—that percentage grew to 79%.” 

 

The authors propose several changes to the law clerk hiring system. First, judges should explicitly allow for more fluidity in the application materials they request so that racially diverse applicants can provide more relevant information. Second, the federal judiciary may want to explicitly focus on law clerk hiring and how current markers of achievement are likely to limit the racial diversity of a pool of clerkship applicants. Third, judges may wish to reconsider how they sort through clerkship applicants.

 

Law schools also can make changes to increase the racial diversity of the clerkship pool by making more of an effort to educate students about clerkships early on and to level the playing field for students who may be interested. Relatedly, professors should ensure that they equally offer underrepresented students opportunities. 

 

Current and former law clerks can also help change the clerkship pipeline. Clerks who have gone through the clerkship application and interview process can offer unique insights to diverse applicants and ensure they have as much information as possible. Recently, local Miami lawyer and former law clerk, Chris Lomax organized a “Pathways to Federal Clerkships” event that did just that.

 

The authors conclude: “Judges, lawyers, and law schools must all commit to addressing the lack of diversity among law clerks while being accountable for the part they have to play in the current lack of diversity. Without owning their individual roles in creating this problem or committing to solve it, nothing will truly change—we will continue robotically requesting the same inputs and be dismayed at the same, stale outcomes. We owe it to the future of the profession to do better than what we are doing now.”

 

Judge Bloom and Chris Lomax are doing their part; we all need to step up.

 

The Miami legal maeket is en fuego

 All the big firms are opening shops in the 305.  Chiacgo's Sidley Austin is the latest with a 40 lawyer office.  From Reuters:

  After months of recruiting lawyers from rival firms in Miami, Sidley Austin said on Wednesday it has opened a physical office in the South Florida city that has become a popular spot for large firms' expansion efforts.

Chicago-founded Sidley said it already amassed more than 40 lawyers in Miami through hiring and relocations before formally opening the office.

Lawyers from the firm are currently working out of a temporary space in the city and will move next year into a new office tower in Miami's financial district.

Miami has attracted several other big law firms this year that are following the migration of lawyers and clients in the tech and finance sectors to South Florida during the COVID-19 pandemic.

Two other Chicago-founded firms, Kirkland & Ellis and Winston & Strawn, have opened up Miami outposts in recent months. Atlanta-founded King & Spalding and Quinn Emanuel Urqhuart & Sullivan, which was started in Los Angeles, have also planted roots there.

 And Dearest Rumpole, the Verdict is great, but A Few Good Men is better:

'Dobbs' Will Open the Floodgates to Litigation

 That's the title of an op-ed that my oldest daughter Nicole Markus (and I) wrote about Dobbs.  The intro:

My co-author and father was born in 1972, almost 50 years ago. (Sorry, dad). The next year, in 1973, the Supreme Court ruled in Roe v. Wade that the U.S. Constitution protects the right to privacy, which includes the right to have an abortion. A few months ago, someone leaked a draft opinion in Dobbs v. Jackson Women’s Health Organization, suggesting the court was about to overturn Roe and later cases like Planned Parenthood v. Casey (which reaffirmed Roe in 1992).

Dobbs is now official, and the Supreme Court, per Justice Samuel Alito, did not change much from that draft opinion. It is now the law of the land that states can not only prohibit—but affirmatively criminalize—abortion. That means, for example, that if a woman finds out that a fetus will be born without a heart and will die within minutes of birth, a state can force her to remain pregnant for nine months and have the child, only to watch it immediately die. If a state chooses, it can force a 10-year-old rape victim only six weeks pregnant to carry a pregnancy to term (or risk being arrested for traveling to another state, as one such victim allegedly had to do after Ohio’s total ban on abortions took effect in the aftermath of Dobbs).

In Justice Brett Kavanaugh’s Dobbs concurrence, he offered the wishful thought that the court is now free from deciding further abortion cases. Boy, was he wrong. It already is clear that Dobbs is going to lead to an avalanche of litigation.

Would love your thoughts.

Judging in Times of Crisis

                                  

Washington Reviewing the Western Army, by Kemmelmeyer, Fred., 1796-99

By John R. Byrne

That's the subject of Judge Altman's forward to the recent issue of the University of Miami Law Review. He covers the role judges have played in various domestic crises, from Justice James Wilson authorizing President Washington to use force to put down the Whiskey Rebellion to Chief Justice Taney's ruling that President Lincoln's suspension of the writ of habeas corpus--done to facilitate the seizure of a confederate sympathizer--was unconstitutional. Most relevant to our district, he discusses how the COVID-19 pandemic posed its own set of challenges to the judiciary, including how to resolve whether the Court's suspension of grand-jury proceedings meant that defendants indicted after the expiration of the statute of limitations must have those indictments dismissed (Judge Altman and Judge Ruiz held "no" and Judge Middlebrooks "yes"). The Eleventh Circuit is set to weigh in on that issue soon. Interesting read!