October Term 2022 and diversity in the courts

 It's here.

And --thankfully -- we have a much more diverse Court.

And then there were four. (Photo from before yesterday's investiture of Justice Ketanji Brown Jackson, by the Supreme Court of the United States.) pic.twitter.com/sQWy4jzp0s

— Amy Howe (@AHoweBlogger) October 1, 2022

In addition to the diversity on SCOTUS, we are making inroads in courts around the country, including here at home.  Congrats to Penny Augustin-Birch, who was sworn in as our newest magistrate judge.

Meantime, I apologize for the sporadic blogging.  It's been a year of trials for me, starting with one here in Miami before Judge Martinez, then in Denver before a different Judge Martinez, and after that, one in Fort Myers of all places.  The jury in that case went out on the Friday before Hurricane Ian turned towards SW Florida.  The jury indicated it was hung, and the parties expected that we would be back for further deliberations last week.  And of course, we couldn't.  Tragically, Fort Myers was devastated and the courthouse is closed indefinitely.  A mistrial was declared.  Here's an article about it.

At the end of this month, my partner Margot and I will be headed off to SDNY for a lengthy trial out there, so blogging will be a little rough when I'm away, but I will do my best.  Wish us luck!  

And if you'd like to write a guest post, just email me.

Cannon, Special Master, 11th Circuit, oh my

 It's hard to keep up with all of the Trump goings-on.

Cannon rules for Trump.

Cannon gets reversed by CA11.

Cannon appoints Special Master per Trump's request.

Special Master rules against Trump.

Cannon overrules Special Master.

Read the latest order here, where Judge Cannon says that the Special Master was wrong to force Trump to verify certain items and also tells the Special Master that he's moving too fast. 

 

It's a hurricane day...

 ...and it's the long conference in the Supreme Court.

Today at SCOTUS: The justices meet privately for their annual "long conference" to review cert petitions that have rolled in over the summer. They'll also likely discuss the status of the Dobbs leak investigation and whether to continue live audio of oral arguments this term.

— SCOTUSblog (@SCOTUSblog) September 28, 2022

The Dolphins are 3-0 and play tomorrow night.

What else is cooking?

Stay safe out there.

Hurricane Ian update

11:45am update- All courthouse locations in the district will be closed tomorrow (Wednesday).  Miami and Fort Pierce will also be closed on Thursday. 

Money in College Sports

By John R. Byrne

    Tough loss for the Canes on Saturday but it may not hurt recruiting that much if the Name, Image, and Likeness money keeps flowing. Last Thursday Judge Singhal, who played baseball at Rice, moderated a panel at UM law school exploring the legal dynamics of this NIL era. In short: it's complicated. Some states have NIL laws, others don't, and at least one state (Alabama) passed a law and then repealed it. Meanwhile, SCOTUS--with Justice Kavanaugh leading the charge--seems ready to endorse a pay-for-play model. It's the wild west right now (a QB recruit is allegedly getting 8 million to play for Tennessee). Will be interesting to see how this shakes out over the next few years.

Hispanic Heritage Event at the Wilkie D.

 

By John R. Byrne

The "Jefes" were out in force yesterday at the SDFL's Hispanic Heritage event. Judge Ruiz led a panel discussion with Chief Judge Altonaga, Chief Magistrate Judge Torres, Florida Supreme Court Chief Justice Carlos Muniz, and Chief Judge Ivan Fernandez of the Third District Court of Appeal. There was also a cool intro video where other Hispanic chief judges from other districts talked about their heritage and offered advice. 

At the reception, the district put up poster boards of all the district's Hispanic judges. Was impressive to see how many we have (and have had). Didn't know Judge Nesbitt had a Hispanic background. Going to be hard to top this one. Maybe Justice Sotomayor, who has some Miami connections, next year?

11th Circuit sides with DOJ over Trump

Here's the per curiam opinion, which reverses Judge Cannon and grants the requested stay.

The panel was Rosembaum, Grant, Brasher.

It starts this way:

Following the execution of a search warrant at the residence of Plaintiff-Appellee, former President Donald J.Trump, Plaintiff moved for the appointment of a special master to review the doc­uments that Defendant-Appellant United States of America seized. The district court granted that motion in substantial part. Now, the United States moves for a partial stay of the district court's or­der as it relates to the roughly one-hundred documents bearing classification markings. We decide only the narrow question pre­sented: whether the United States has established that it is entitled to a stay of the district court's order, to the extent that it(l)requires the government to submit for the special master's review the doc­uments with classification markings and (2) enjoins the United States from using that subset of documents in a criminal investiga­tion. We conclude that it has.

We stress the limited nature of our review: this matter comes to us on a motion for a partial stay pending appeal. We can­ not (and do not) decide the merits of this case. We decide only the traditional equitable considerations, including whether the United States has shown a substantial likelihood of prevailing on the mer­ its, the harm each party might suffer from a stay, and where the public interest lies.

For the reasons we explain below, we grant the United States's motion for a partial stay pending appeal.

All Trump, all the time

Our current U.S. Attorney, Tony Gonzalez, appeared before the special master in New York, along with a number of other DOJ lawyers.  When is the last time a U.S. Attorney appeared in a different district?  Interesting.  

In any event, the special master appeared pretty skeptical about Trump's claims... saying at one point you can't have your cake and eat it.  Here's some coverage from the Hill:

In a Tuesday conference, Dearie appeared unsatisfied with the response, indicating that further explanation would be necessary only if criminal charges were filed.

He said if Trump’s lawyers will not actually assert that the records have been declassified and the Justice Department instead makes an acceptable case that they remain classified, then “as far as I’m concerned, that’s the end of it.”

James Trusty, a lawyer for Trump, said the legal team was “not in a position” to say whether the documents were declassified without first reviewing them, to which Dearie responded, “You did bring a lawsuit.”

Trump’s lawyers have failed to assert in court that Trump declassified the documents even as they seek to cast doubt on whether the documents are still classified.

“You can’t have your cake and eat it,” Dearie said.

Dearie also seemed to cast doubt on whether Trump’s legal team would be able to review all the classified documents, noting that some of the records are restricted to those with a need to know.

Trump also filed his brief in the 11th Circuit.  Here ya go.