Trump's SCOTUS picks

 David Lat and Zachary B. Shemtob try to argue that Trump's Supreme Court choices aren't as conservative as you think (and not as conservative as Alito and Thomas).  Here's the NYT opinion piece.  They may not be Alito and Thomas, but I'm not so sure they aren't strong right wingers.

From the intro:

“Nobody has ever done more for right to life than Donald Trump,” the former president told the conservative commentator David Brody last month. “I put three Supreme Court justices, who all voted, and they got something that they’ve been fighting for 64 years, or many, many years.”

Mr. Trump sought three things in his judicial appointees, or as he sometimes called them, “my judges.” First, he wanted justices who would overturn Roe v. Wade. Second, he wanted “jurists in the mold of Justices Antonin Scalia, Clarence Thomas and Samuel Alito.” Third, he wanted judges who would be loyal to him.

Opponents of abortion got what they wanted when the Supreme Court overturned Roe v. Wade, and the ramifications of that decision can’t be overstated. But did Mr. Trump get the rest of what he wanted from the justices he appointed?

Almost six years after the first appointment, we can begin to form an answer: not entirely. While conservative, none of his three appointments are nearly as conservative — nor as consistently conservative — as Justices Thomas and Alito. The Trump appointees are also not as unified as they might initially appear. Given that they could serve for decades and hold the balance of power on the current court, understanding the distinctions and differences among them is crucial, both for policymakers looking to draft laws and regulations that will be upheld and for lawyers deciding which cases to bring and how to litigate them before a reshaped Supreme Court.

Florida Supreme Court against D&I courses

 Meantime, federal judges are forcing companies to include diversity and inclusion programs as part of probation and supervised release.  Who has it right?

Here's the WFSU discussing the Florida Supreme Court decision to keep judges from getting CLE credit for D&I courses:

The Florida Supreme Court deleted part of a rule that has allowed judges to take courses in “fairness and diversity” to meet a continuing-education requirement.

The change, backed by six justices, drew a strongly worded dissent from Justice Jorge Labarga, who wrote that it “paves the way for a complete dismantling of all fairness and diversity initiatives in the State Courts System.”

The Supreme Court, which determines rules for the system, issued a decision on Thursday that revised continuing-education requirements. Part of the decision dealt with a requirement that judges receive training in judicial ethics. 

In the past, the rule said, “Approved courses in fairness and diversity also can be used to fulfill the judicial ethics requirement.”

The revised rule says, “The portions of approved courses which pertain to judicial professionalism, opinions of the Judicial Ethics Advisory Committee, and the Code of Judicial Conduct can be used to fulfill the judicial ethics requirement.”

The decision, shared by Chief Justice Carlos Muniz and Justices Charles Canady, Ricky Polston, John Couriel, Jamie Grosshans and Renatha Francis, said the “pre-amendment rule text was overbroad, because course content about ‘fairness and diversity’ might or might not pertain to judicial ethics.”

“Although we have deleted from (the part of the rule) the unilluminating and frequently contested term ‘fairness and diversity,’ course content on procedural fairness and nondiscrimination will continue to qualify for ethics credit,” the decision said. “The revised rule text explicitly says that ethics credit will be given for classes on the Code of Judicial Conduct. And a review of the relevant Code provisions shows that civility and equal regard for the legal rights of every person are at the heart of judicial professionalism.”

But Labarga, who frequently dissents in cases, wrote that while “I appreciate the majority’s observation that the existing rules should be sufficient to cover appropriate ethics courses on these topics, this unilateral action potentially eliminates vital educational content from our state courts’ judicial education curriculum and does so in a manner inconsistent with this Court’s years-long commitment to fairness and diversity education.”

“As stressed by the majority, the canons in the Code of Judicial Conduct do prohibit bias and prejudice in their various forms,” Labarga wrote. “However, the purpose of providing express consideration to fairness and diversity education has been to complement the canons, and in the hopes of addressing the extremely complex issue that is discrimination, to educate the judiciary on strategies for recognizing and combating discrimination. For these reasons, such a decision at this level of institutional gravity is, in my opinion, unwarranted, untimely, and ill-advised.”

The move came amid a high-profile push by Gov. Ron DeSantis to curb diversity-related programs in the state’s colleges and universities. DeSantis and Republican lawmakers last year also passed what he dubbed the “Stop WOKE Act,” which placed restrictions on how race-related issues can be addressed in schools and workplace training — though a legal battle continues over whether the restrictions are constitutional.

 No one asked the Florida high court to take this action.  They did it on their own...

SCOTUS at SOTU

 It's always so weird to me to see them sitting there in the front.

There's the famous Alito outburst.  And RBG admitting she wasn't 100% sober at the lengthy speech.

Last night, both retired Justices Breyer and Kennedy showed up.

And the President ridiculed the Court for overturning Roe:

“Congress must restore the right the Supreme Court took away last year and codify Roe v. Wade to protect every woman’s constitutional right to choose,” Biden said. “Make no mistake; if Congress passes a national abortion ban, I will veto it.”

The president also criticized states that had passed abortion restrictions, calling them “extreme” and told the nation that he and Vice President Kamala Harris were determined to provide “reproductive health care and safeguard patient privacy.”

Several pro-life groups condemned the president’s statements, with one describing the speech as “tragic and frightening.”

“Americans will hear a tragic and frightening, but deeply misleading story about post-Dobbs America tonight – the idea that the pro-life movement is willing to let women die,” Marjorie Dannenfelser, president of SBA Pro-Life America, a pro-life student organization, said in a prepared statement. “That is a blatant lie. Biden and the Democrats could not be more out of step with America as they push abortion on demand for any reason, paid for by taxpayers, up to the moment of birth. In the new Dobbs era, every woman and every child should receive the rights and love and attention they deserve.”

 

Much, Much Too Soon

By Michael Caruso

They say you don’t know a person until you live with them. I would say that you don’t know a judge until you try a case in her courtroom. Before she took the bench, I heard from a colleague that Judge Cooke would be a great addition to our court (you were right, Hugo). Once she took the bench, I wandered into her courtroom to watch David in action, and she impressed me (for what that’s worth) with how she handled the jury, witnesses, and lawyers. But I had never met her. 

Shortly after, my boss assigned me to a case before Judge Cooke. My involvement began in 2005. The pre-trial preparation and litigation spanned two years, the trial lasted six months, and the sentencing, appeal, and resentencing extended the case until 2014. Over those nine years, I got to know Judge Cooke reasonably well, but only as a judge. When I started working with the CJA Committee, where Judge Cooke acted as the court’s member, I began to get to know her as a person.

And that’s what I’ll remember and miss the most. Judge Cooke seemed to have a never-ending supply of sayings and comebacks that always made me smile. Because I was a cook in my previous life, we often talked about food, and sharing a meal with her always was a special event for me. Despite not having a team in common, we bonded over our love of sports. I could go on and on. But, at bottom, although Judge Cooke was a truly excellent and outstanding judge, as a person, she was an extraordinary gift to all who knew her. 

Undoubtedly, others knew Judge Cooke longer and better. I’m happy I knew her at all. Rest in peace, Judge.

5th Circuit finds that Bruen protects domestic abusers' rights to have their guns

The 4th Amendment is on its last legs, but the 2nd Amendment is alive and kicking. Check out this Fifth Circuit opinion from last week, finding a statute unconstitutional for prohibiting a person subject to a domestic violence restraining order from possessing a gun. 

From CNN:

A federal law that prohibits people subject to domestic violence restraining orders from possessing firearms is unconstitutional, a conservative-leaning appeals court ruled Thursday.

The ruling is the latest significant decision dismantling a gun restriction in the wake of the Supreme Court’s expansion of Second Amendment rights last year in the New York State Rifle & Pistol Association, Inc. v. Bruen decision.

The 5th US Circuit Court of Appeals said that the federal law targeting those believed to pose a domestic violence threat could not stand under the Bruen test, which requires that gun laws have a historical analogy to the firearm regulations in place at the time of the Constitution’s framing.

“Through that lens, we conclude that (the law’s) ban on possession of firearms is an ‘outlier’ that our ancestors would never have accepted,” the 5th Circuit said.

The Justice Department signaled Thursday night that it plans to appeal the ruling. Attorney General Merrick Garland said in a statement that Congress had determined the statute “nearly 30 years ago.”

“Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision,” he said.

The Justice Department did not specify its next step in seeking review of the ruling, which could include asking the 5th US Circuit Court of Appeals for an en banc rehearing by all the judges on the court, or asking the US Supreme Court to take up an appeal.

The court’s opinion was written by Judge Cory Todd Wilson, who was appointed by former President Donald Trump. He was joined by Reagan-appointee Judge Edith Jones and Judge James Ho, another Trump appointee who also wrote a concurrence.

 

Misconduct by prosecution allows law enforcement officer charged with misconduct to go free

 Fun system we have.  From the N.Y. Times:

The cases were thrown out in scores. In the Bronx, 349 convictions were tossed, along with more than 100 in Manhattan. In Brooklyn, 90 were overturned.

After Joseph Franco was charged in 2019 with perjury and other crimes related to his decades as a New York Police Department narcotics detective, prosecutors lined up to dismiss cases in which he had been involved.

But on Tuesday, one more prosecution was tossed: that of Mr. Franco himself. A New York State judge, Robert M. Mandelbaum, found that prosecutors with the Manhattan district attorney’s office had failed to turn over evidence to the detective’s lawyers on three occasions, a major ethical violation, and dismissed the charges.

“As you have heard,” Justice Mandelbaum told jurors, “to date there have been two different occasions that you have heard about where the prosecution failed to disclose certain evidence.”

Judge Mehta goes after defense lawyers in Oath Keepers' trial for asking for an extra table

This Order isn't a good way to start trial... but the defense is right. Putting aside the normal advantages that the government gets -- sitting closer to the jury with plenty of space to spread out -- the defendants and their lawyers in a multi-defendant case should all have enough space to be in the well of the courtroom.

 

RIP Judge Marcia Cooke

Judge Cooke, 68, passed away today in Detroit surrounded by her family.  What a heartbreaking and huge loss. The first black woman federal judge in Florida, she took over Wilkie Ferguson's seat back in 2003.  She was confirmed 96-0.

I know how much we all loved her.  

She was such a nice person.

And a great judge.

Compassionate.

Fair.

Decent.

A huge heart.

Please share your Judge Cooke stories in the comments.  (Here is the Herald obit.)

She was the best.  I'll miss her very much.