Judge Altman named "Judge of the Week" by David Lat

 Here's the newsletter, which you should subscribe to.  And his discussion about Judge Altman:

Judge of the Week: Judge Roy Altman.

Pro-Palestine or even pro-Hamas law students aren’t the only ones getting into controversies over opining on the Israel-Hamas conflict. It’s happening to federal judges too—specifically, Judge Roy Altman (S.D. Fla.).

On Thursday, Judge Altman published an opinion piece for the National Review, The Israelis Slaughtered by Hamas Were Not ‘Settlers.’ Responding to Yale professor Zareena Grewal—who defended Hamas’s October 7 attack on Israel by asserting that the victims were “settlers, not civilians,” and deserved what they got—Judge Altman employed historical and legal analysis to argue that “under international law, they had just as much right to be where they were as an American does in New York City.”

Given how passionate people can get about the Israel-Palestine conflict, it should come as no surprise that Judge Altman received flak for his piece. After prominent Florida litigator David Oscar Markus took to his SDFLA Blog, the outlet of record for the Southern District of Florida, to praise the judge, anonymous commenters argued that it was inappropriate, perhaps even unethical, for Judge Altman to opine on a controversial issue in this way. The next day, also at the SDFLA Blog, Judge Raag Singhal defended Judge Altman, arguing that he had the right to speak out and praising him as “an exceptional judge, colleague, and friend.”

After reviewing the potentially relevant provisions, I don’t believe Judge Altman violated the Code of Conduct for U.S. Judges. Canon 4, which governs so-called “Extrajudicial Activities,” provides that “[a] judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice”—which would include the application of international law to the Israel-Hamas conflict. Nor did his commentary violate Canon 5, “A Judge Should Refrain from Political Activity,” which focuses on running for political office, endorsing candidates, and political fundraising.

That said, was it imprudent for Judge Altman to have weighed in on such a hot-button issue? The case for that is stronger—and my husband/editor Zach thinks that writing this National Review piece was unwise. I don’t know if I’d go that far, but I do believe Altman should recuse in future cases where his NR essay might cause his impartiality to be reasonably questioned—for example, as posited by one commenter, a case involving a local professor fired for antisemitic or pro-Hamas remarks (even if recusal might not be strictly required, as Judge Singhal argued in his SDFLA Blog post).

Even before this latest controversy, some South Florida lawyers have wondered whether Altman, although highly respected as a jurist, might be more suited to politics than the monastic life of the federal bench. He’s gregarious, well-connected, and well-credentialed, with degrees from Columbia, where he was a star on both the football and baseball teams, and Yale Law. Rumor has it that Senator Marco Rubio (R-Fla.) pushed Altman as a judicial nominee to prevent him from becoming a political rival. So don’t be shocked if, at some point in the next few years, Judge Altman leaves the bench to plunge into politics.

As one judge enters hot water, two others are exiting it. In a two-page, unsigned order, the Second Circuit Judicial Council declined to reconsider its earlier order clearing Chief Judge William Pryor (11th Cir.) and Judge Corey Maze (N.D. Ala.) of misconduct in connection with their hiring of controversial clerk Crystal Clanton. As you might recall, Clanton was accused of making racist statements in a pre-law-school job—and defended against the racism charges by none other than Justice Clarence Thomas. Based on my latest SCOTUS clerk hiring report, Justice Thomas still has one open spot for October Term 2025; don’t be shocked if it gets filled by Crystal Clanton. (If you have any intel on this, please drop me a line.)

In nominations news, the Biden Administration named its forty-first round of judicial nominees: Magistrate Judges Jacquelyn Austin (D.S.C.), Jacqueline Becerra (S.D. Fla.), Melissa Damian (S.D. Fla.), and Julie Sneed (M.D. Fla.), and former federal prosecutor David Leibowitz (S.D. Fla.), now an in-house lawyer. I’m struck by how common it is these days to pick district-court nominees from the ranks of magistrate judges. This strategy makes sense, since magistrate judges tend to be highly competent, not too political, and relatively easy to confirm—helpful in states like South Carolina and Florida that have two Republican senators. But I also think it reflects the reality that serving as a federal trial judge isn’t as attractive as it once was for high-powered practitioners; given the growing gap between law firm and judicial pay, they give up a lot more financially compared to sitting magistrate judges.

In defense of Judge Roy Altman

By Judge Raag Singhal

I write today to come to the defense of my colleague and close friend Judge Roy Altman.  I’ll call him Roy because that’s who wrote the piece in National Review that causes today’s heavy anonymous blog comments.  First, let me state the obvious.  I don’t write like Roy.  I wish I did, but I don’t.  If I did, I hope I would have the tempered confidence to write so well about a variety of topics.

Second, Roy wrote the subject article sometime around October 18, 2023.  I know this because we talked about it and he would have liked to have not published it.  He sat on it for two weeks hoping someone else would write and publish a factual article that explained why an associate professor (Grewal) at his cherished university (Yale) should not receive tenure.  That article never came.  Instead, the Yale Daily News whitewashed an article by sophomore Sahar Tartak by removing facts negative to Hamas in a method reminiscent of denying the Holocaust.  And so, Roy went ahead and stated his view on this very important topic.  For those who take the time to actually read what Roy wrote, he never says Grewal should be kept from stating her views.  What he did say is she should not receive tenure and be in a position to influence impressionable students when she is wrong on both the facts and the law.

Third, today’s blog comments call for a muzzle over recusal.  But, when Justice Jackson was on the Harvard Board of Overseers immediately before her historic SCOTUS nomination—a position where she made decisions on tenure and student admissions—no one had an issue.  She was at that time also an Article III federal judge.  And, while she recused herself from consideration in Students for Fair Admissions, Inc. v Harvard College, because it involved students and policies that actually came before her in her Board position, she did not recuse herself on the companion case versus University of North Carolina, a decision that was viewed as appropriate and proper.  The point is that recusal is not required when the same issue with different litigants appears before the judge.  Of course, a Motion to Disqualify may be filed, and the judge may grant it but it is not required. 

Two cases are worth consideration.  In Texas v. Johnson, 491 U.S. 397 (1989), Justice Scalia famously wrote “The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.” Id. at 420-21.  The case involved flag burning and Justice Scalia had previously gone on record in an interview saying if he could, he would jail all flag burners, but when a flag burning case came before him, he voted with the majority to reverse the conviction in Johnson because his personal view could never trump the U.S. Constitution.  And of course, Justice John Paul Stevens—who spent most of his late retirement in Fort Lauderdale—was quite clear in his dissenting opinion in Republican Party of Minnesota v. White, 536 U.S. 765 (2002) on the topic of judicial impartiality.  Justice Stevens noted the fundamental attribute of judicial office requires countless judges to routinely make unpopular “rulings that are surely disliked by at least 50 percent of the litigants who appear before them. It is equally common for them to enforce rules that they think unwise, or that are contrary to their personal predilections.” Id. At 798. “It is the ability both to reevaluate [personal views] in the light of an adversarial presentation, and to apply the governing rule of law even when inconsistent with those views, that characterize judicial openmindedness.” Id. At 801. No doubt, Judge Altman’s reputation is one of fairness and impartiality.

At some point, truly, Roy Altman will move on from our Court as 10:34 and 10:55 seem to want and suggest.  That day will be a sad one for me although I will be happy for him.  He is an exceptional judge, colleague and friend.

Judge Roy Altman speaks up... (UPDATED)

 ...and I'm very grateful he is doing so in defense of Israel and against the terrorists.  John Byrne detailed his UM speech and article in this post.  This time, he writes a total and justified smack down of Yale professor Zareena Grewal in this National Review article, which starts this way:

On October 7, just hours after Hamas terrorists invaded Israel and slaughtered some 1,400 Jews — including women, children, and 260 college-age kids who were dancing at a music festival for peace­ — Zareena Grewal (a professor in the ethnicity, race, and migration program and the American studies department at Yale College) had this to say on social media: “Settlers are not civilians. This is not hard.” There’s already a petition seeking Grewal’s termination that’s been making its way around the Yale alumni community (of which I’m a proud member). But that petition — which focuses mainly (and rightly) on Grewal’s support for the gruesome murders of toddlers and octogenarians — misses a more obvious point: Grewal is just wrong on the law and the facts.

Grewal’s underlying premise, after all, is that the Israelis who were butchered on October 7 were interlopers (“occupiers,” to use the fashionable term), living in some illegal settlement on Arab lands. But the people who were slaughtered were not settlers (and, even if they were, they weren’t legitimate military targets under any legal regime I’m aware of). On the contrary, under international law, they had just as much right to be where they were as an American does in New York City. 

And finishes with:

Just hours after Hamas terrorists threw live grenades into bunkers full of terrified Jewish families, Grewal tweeted something I haven’t yet mentioned: “It’s been,” she gloated, retweeting a news video about the onslaught, “such an extraordinary day!”

Here’s the point: If Grewal (and people like her) subscribe to Hamas’s genocidal mission statement, they probably shouldn’t be serving as role models for our college-age children. But even if they don’t subscribe to Hamas’s hateful charter — if they’re just wrong about the basic facts — then they shouldn’t be teaching our children, the custodians of America’s future.

I've heard people ask whether a federal judge should be speaking out on issues like this.  The answer is absolutely YES.  This isn't an issue that will come before Judge Altman.  And it's important for smart and respected people to be speaking out against antisemitism.  Thank you, Judge.

UPDATE -- I should also thank Judge Milton Hirsch for speaking up.  Here's his Constitutional Calendar email, which is so powerful and moving.  I share it in its entirety:

(This Constitutional Calendar item is associated with December 7.  But given the present crisis -- given that scarcely three weeks have passed since bloodthirsty Hamas terrorists murdered and kidnapped innocent Israeli men, women, and children -- I'm distributing it today.)

The Constitution acknowledges the existence, and the applicability to American government, of international law.  See, e.g., Art I § 8 (Congress is given power to “define and punish . . . offences against the law of nations”); Art. VI (supreme law of the land includes the Constitution, laws, “and all treaties made, or which shall be made, under the authority of the United States”).  Of course at the time of the founding, international law, apart from treaties and the works of some noted treatise-writers, was almost exclusively customary.

But that is not to say that it was not law.  Certain principles were universally, or all-but-universally, accepted.  One such principle was that a nation at peace with another, seeking to wage war against that other, was obliged to declare war before commencing hostilities.  In ancient Greece Thucydides bitterly condemned the Thebans, allies of Sparta, for launching a surprise attack against an ally of Athens without a declaration of war.

On December 7, 1941, the Empire of Japan launched a devastating attack against the United States at Pearl Harbor.  Over 2,400 Americans were killed, and about 1,200 wounded.  Of the eight battleships in the Pacific fleet, all were damaged and four sunk.  (Six were later returned to service and went on to fight in the war.  The USS Arizona, marked by a memorial to all those who died, lies at the bottom of the harbor still.)

Japan's written declaration of war was not conveyed till the following day -- after the attack had been completed.  The untimely Japanese declaration of war cites Japan’s imagined grievances against the United States and Great Britain, claiming that by declining to provide Japan with oil, steel, and other natural resources, the U.S. and the U.K. had wrongfully interfered with Japan’s “Greater East Asia Co-Prosperity Sphere” – an Orwellian term for Japan’s brutal conquest of Manchuria, and its plans for similarly brutal treatment of Korea and all of southeast Asia.  

The United Nations did not then exist, so there was no Secretary General Antonio Guterres to embrace Japan’s declaration and to bloviate that the attack on Pearl Harbor “did not happen in a vacuum.”

Of course nothing – absolutely nothing – happens in a vacuum.  Our parents and grandparents, however, weren’t foolish enough to concern themselves with such irrelevancies.  Having been savagely attacked in violation of international law, America declared war on Japan, and committed its entire strength to the war effort.  There was no prattle about a “proportional response,” or about a “ceasefire.”  Any such prattle would have been dismissed for what it was.

The Japanese target at Pearl Harbor was a military target: America's Pacific fleet was all that stood between Japan and Asian conquest.  The attack of December 7 was not directed against civilians, and of all casualties only 68 civilians died in that attack.  The Japanese force did not kidnap hostages, rape women (and then post videos of the rapes on social media), or slaughter children.

The United States fought for, and demanded, unconditional surrender; and the war was not over till that surrender took place on the deck of the USS Missouri in Tokyo Bay.  Consistent with international law, then and now, America used any and all forms of force at its disposal to protect its homeland, its people, and its armed forces.  Consistent with international law, then and now, every nation, when the outlaw's knife is at its throat, has the right to do the same.

Every nation.  Then and now.

Breaking— White House to nominate 3 today for open seats (UPDATED)

UPDATE -- The White House made it official here.  Congratulations to the three nominees!

I have it on good authority that President Biden will nominate Jackie Becerra, Melissa Damian, and David Leibowitz today. Congratulations to three great people. 

My understanding is that a deal was struck so that Detra Shaw-Wilder will be nominated next in Judge Scola’s seat — he took senior status yesterday. 

Let’s see if this actually pans out and whether the Senate can confirm them before the end of the year. 

 UPDATED -- And in the Middle District, Biden is nominating Julie Sneed.

SECOND UPDATE -- The Herald covers the 3 nominations for the SDFLA here. 

Breaking -- U.S. Attorney's Office names new Criminal Chief and Deputy Chief

Congratulations to Peter Forand and Maria Medetis, the new Chief and Deputy Chief of the criminal division at the U.S. Attorney's Office.

Mark Lapointe named them both today in an office-wide email.    

More to follow.

Justice Amy Coney Barrett speaks

 I missed this speech by the relatively new Justice.  The AP covered it here:

 U.S. Supreme Court Justice Amy Coney Barrett said Monday that it would be a good idea for the nation’s highest court to adopt a formal code of conduct, but she said the nine justices already agree that they should hold themselves to the highest ethical standards possible.

Barrett spoke at a University of Minnesota Law School event just two weeks after the high court opened its current term in October with fresh cases on guns, abortion and the power of regulatory agencies on its docket, but with ethical concerns high on many observers’ minds. Ethics issues have dogged some justices — including conservative Justices Clarence Thomas and Samuel Alito and liberal Justice Sonia Sotomayor.

“I think it would be a good idea for us to do it, particularly so that we can communicate to the public exactly what it is that we’re doing — and in a clearer way than perhaps we have been able to do so far,” Barrett said. “I will say this, there is no lack of consensus among the justices — there is unanimity among all nine justices — that we should and do hold ourselves to the highest standards, highest ethical standards possible.”

Qualified Immunity Defense Goes Down Again

By John R. Byrne

Tough week for the qualified immunity defense in the 11th Circuit. This case involved a school resource officer who sought and obtained arrest warrants for first and second degree child cruelty against a single working mom. The basis for the charges was laughable and the case was dismissed. But the mom sued the officer for malicious prosecution. The district court granted qualified immunity to the officer but the 11th Circuit reversed. Judge Newsom’s well-written introduction doesn’t pull any punches. Here’s a snippet:

“[E]ven the most officer-protective doctrines have their limits. Officer Smith had Butler arrested on extraordinarily serious felony charges based on conduct that, by any objective measure, doesn’t remotely qualify. And to make matters worse, the affidavits that Officer Smith submitted in support of her warrant applications conspicuously omitted material exculpatory information.”

Butler Case by John Byrne on Scribd