Real ethical issues versus fake ones

 I've been posting a bunch about the ethical issues popping up with the Supreme Court Justices recently.  From Ginni Thomas to Harlan Crow and so on.  Some of these issues are real concerns, especially Ginni Thomas' role in January 6.  

One issue, though, that I expressed skepticism about last week was Chief Justice Roberts' wife being employed as a legal recruiter.  The more I think about it, the more I don't get the uproar.  She is a lawyer who left her law job because she did not want the appearance of impropriety.  And now she is working as a legal recruiter.  She should not have to step away from her job. 

Here are two articles saying Jane Roberts' job is a nothingburger (Above the Law and Bloomberg).

Interested in your thoughts.

"Supremely Arrogant"

That's the title of Maureen Dowd's NYT op-ed on the Supreme Court.  From the conclusion:

John Roberts cannot accept that these justices are incapable of policing themselves. Despite all the slime around him, he refused to testify before Congress about a court that blithely disdains ethics.

One reason may be, as The Times reported, that the chief justice’s own wife, Jane, has made millions of dollars as a legal recruiter, placing lawyers at firms with business before the Supreme Court.

Even though I’ve been writing since Bush v. Gore that the court is full of hacks and the bloom is off the robes, it is still disorienting to see the murk of this Supreme Court.

 

Gillum Found Not Guilty

 

By John R. Byrne

Not a trial in the Southern District of Florida but a trial with Southern District of Florida ties. Our own David Markus and Margot Moss obtained a "not guilty" verdict on the charge of lying to the FBI for the former gubernatorial candidate. The jury hung on the other 18 counts, but apparently were 10-2 in favor of acquittal on those. Prosecutors say they'll retry Gillum. Lot of national press coverage on this one.

Good luck to the Heat (Saturday @3:30) and Panthers (Sunday @6:30) this weekend.

Breaking -- Biden to nominate 3 for district judgeships

I have it from multiple sources that President Biden has cut a deal with Senators Rubio and Scott to nominate Jackie Becerra, Melissa Damian, and David Leibowitz for the 3 open district slots.  Three great choices.  More on this later, but wanted to get this up.

May the Fourth be with you.

Always.

 

If you are looking for some legal news, check out this new story from ProPublica about Harlan Crow paying for the private school tuition of a boy that Justice Thomas raised as his son.

More News & Notes

 1.  The 3rd Circuit makes filing deadlines 5pm.  I hate this rule. It won't help lawyers and will just move the deadline to a day earlier.  Even my kids can upload their papers until 11:59 at night.  Here's the rule and the reasons for it.

2. Former Judge Michael Luttig says the Supreme Court really needs an ethics code.  Here's the actual statement.  From the conclusion:

Whether the Supreme Court is subject to ethical standards of conduct or not is emphatically not a partisan political issue and must not become one. But just as emphatically, the issue of the Court’s ethical standards of conduct does not present a constitutional question, much less one of any constitutional moment. This is not to say that the issue and question of whether the Supreme Court should be bound to ethical standards in its non-judicial conduct and activities is not important. It is unquestionably important. It is even of surpassing importance. But it ought not be thought of as anything more – and certainly nothing less -- than the housekeeping that is necessary to maintain a Republic.

Lest the Congress and the Supreme Court ill serve the nation in the course of attempting to resolve the constitutionally fraught question before them, they should together address the question with the solemnity and wisdom that the question deserves and requires. If they do but this, they will almost assuredly conclude that the answer they seek is the answer they both should want.  

3.  Gov. DeSantis expands the death penalty... and it looks to be unconstitutional.  Via the WaPo:

Gov. Ron DeSantis (R) expanded Florida’s death penalty law on Monday, signing a measure making it a capital crime to rape a child under the age of 12, a law that could set up a future U.S. Supreme Court case.

Vowing Florida “stands for the protection of children,” DeSantis signed the law during a campaign-style event in Titusville, touting his record on issues involving “law and order.”

The measure, which overwhelmingly passed the Florida legislature last month with bipartisan support, gives state prosecutors the option of seeking the death penalty if an adult is found guilty of the sexual battery of a child.

The law will still go into effect even though it is unconstitutional. In 2008, the U.S. Supreme Court issued a 5 to 4 decision that struck down a Louisiana law that allowed a child rapist to be sentenced to death, barring states from executing child sex predators unless they also murdered their victims.

News & Notes

1.  The Fort Lauderdale federal courthouse is still closed due to flooding weeks ago. 

2. Check out this wild sentencing, covered by Jay Weaver:

It started out as a routine sentencing of a Colombian cocaine smuggler and wound up as a messy and very Miami legal drama. You’ve got a local jeweler who deals in high-end watches claiming he’s been stiffed on a quarter-million loan to the smuggler’s friend, who bankrolled his legal defense. You’ve got an attorney hired by the jeweler to collect the debt making his claim in a criminal case, something that just never happens in by-the-book federal court. And you’re got a doozy of a motion by the jeweler’s attorney, arguing the drug trafficker should get punished hard because his pal who took out the loan hasn’t paid up, that the FBI fell down on the job of investigating the unpaid debt, and that the defense attorney for the smuggler ought to be sanctioned for any number of reasons.

3. Justice Alito apparently believes he knows who the leaker is.  And he's blaming the bar for not coming to his defense.  Oh boy.  Via the NY Times:

He added that he was disappointed that lawyers had not come to the defense of the court, which has faced mounting scrutiny for what critics say are serious ethical lapses.

“This type of concerted attack on the court and on individual justices” is, he said, “new during my lifetime.”

He added: “We are being hammered daily, and I think quite unfairly in a lot of instances. And nobody, practically nobody, is defending us. The idea has always been that judges are not supposed to respond to criticisms, but if the courts are being unfairly attacked, the organized bar will come to their defense.”

Instead, Justice Alito said, “if anything, they’ve participated to some degree in these attacks.”

4. Unlike the criticism of Justice Thomas, I'm not sure this attack on Chief Justice Roberts' wife, who has a very successful attorney placement firm, is justified.  From Business Insider:

"When I found out that the spouse of the chief justice was soliciting business from law firms, I knew immediately that it was wrong," the whistleblower, Kendal B. Price, who worked alongside Jane Roberts at the legal recruiting firm Major, Lindsey & Africa, told Insider in an interview. "During the time I was there, I was discouraged from ever raising the issue. And I realized that even the law firms who were Jane's clients had nowhere to go. They were being asked by the spouse of the chief justice for business worth hundreds of thousands of dollars, and there was no one to complain to. Most of these firms were likely appearing or seeking to appear before the Supreme Court. It's natural that they'd do anything they felt was necessary to be competitive."

Roberts' apparent $10.3 million in compensation puts her toward the top of the payscale for legal headhunters. Price's disclosures, which were filed under federal whistleblower-protection laws and are now in the hands of the House and Senate Judiciary committees, add to the mounting questions about how Supreme Court justices and their families financially benefit from their special status, an area that Senate Democrats are vowing to investigate after a series of disclosure lapses by the justices themselves.

 5. So, should there be an ethics code for the Justices?  This WaPo piece makes fun of the High Court for pushing back against the code.

Disney Files Suit

 By John R. Byrne

This seemed like a matter of time. But now it's official. Disney is pushing back against Governor DeSantis's latest moves to exert state control over the Magic Kingdom. A few weeks back we covered how the old Reedy Creek board had executed a Declaration of Restrictive Covenants that greatly limited what the new board (the "Central Florida Tourism Oversight District") could do in terms of Disney. Yesterday, the new board declared the Declaration "void and unenforceable." Separately the Florida Legislature has recently pushed forward legislation that would prohibit enforcement of the Declaration (along with a Development Agreement) "unless the [new board] were to readopt them."

Disney presents a host of constitutional challenges to the state's action, arguing that it's "[a] targeted campaign of government retaliation--orchestrated at every step by Governor DeSantis as punishment for Disney's protected speech[.]" 

Disney isn't lacking for sound bites. How about this quote from the Florida representative who introduced the original Reedy Creek dissolution bill? “You kick the hornet’s nest, things come up. And I will say this: You got me on one thing, this bill does target one company. It targets The Walt Disney Company.”

Hard to believe.

The complaint (excerpted below) was filed in the Northern District of Florida. Will be fascinating to see this play out.

Disney Complaint by John Byrne on Scribd