What will Election Day bring for our courts?

Everyone is so stressed out.

More than any other election that I have ever seen.

I'm surprised that very little has been said about the future of the Supreme Court, and of course the lower courts.  That's a top 5 issue for me.  

Speaking about the courts, check out this story about Ed Carnes' confirmation, which has a Sonia Sotomayor twist:

So after the Left launched its ugly, unfounded attack on Eleventh Circuit nominee Ed Carnes, how did Senator Richard Shelby of Alabama (then still a Democrat) strong-arm his fellow Democrats to win confirmation of Carnes’s nomination?

The curious answer is that Shelby threatened to block three other judicial nominations made by President George H.W. Bush.

Why would Shelby’s threat have any force with Democratic senators? Because Bush made those nominations at the behest of individual Democratic senators—and indeed, in the case of a 37-year-old district-court nominee by the name of Sonia Sotomayor, in the face of grave concerns held by White House lawyers.

How will Justice Alito explain this one?

 From Above The Law:

The Intelligencer has a story today that actually happened several years ago but — not unlike Alito’s Upside-Down Flag nonsense — didn’t register with the public at the time. As we noted last week, Alito has been taking expensive gifts — as the conservative Supreme Court justices are wont to do! — from a right-wing German princess, but it turns out he’s been cultivating more ties to the European aristocracy.

It turns out the last time Donald Trump was president, Supreme Court Justice Samuel Alito, author of the Dobbs decision setting women’s health care back a few centuries, added a knighthood to his own résumé, pledging an oath to the Sacred Military Constantinian Order of Saint George. The knighthood, bestowed in 2017, wasn’t widely reported at the time, but the order’s website was updated in July with Alito’s investiture on the front page.

May we present, Sir Samuel of Blackacre! We don’t know his sigil, but it’s meant to be flown upside-down.

Alito’s “An Appeal to Heaven” flag is a reference to John Locke’s argument in favor of a right to rise up against monarchists. Alito himself accepted a knighthood from an order managed by the House of Bourbon–Two Sicilies. The grand prefect of the order’s son is a pretender to the Imperial Throne of France.

...

Did the Framers have anything to say about the idea of European nobles granting titles to American government officials? You know, since they’d just fought a war of independence from a royal superpower on the strength of Enlightenment philosophy.

Indeed, they did! Article I, Section 9 of the United States Constitution reads, in relevant part:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

That’s why when you hear of some famous politician getting knighted or some other play title, it’s always after they retire.

Judge Cannon denies FPD's motion to recuse

 Here's the order, which starts this way:

THIS CAUSE comes before the Court upon Defendant Ryan Wesley Routh’s Motion to Recuse the undersigned (the “Motion”), filed on October 17, 2024 [ECF No. 48]. Defendant presumes my impartiality as a judicial officer but argues that recusal is warranted under the catch-all provision of the federal recusal statute, 28 U.S.C. § 455(a), and the Due Process Clause [ECF No. 48]. This is so, Defendant states, because a combination of circumstances creates an “appearance of partiality” due to the “unique facts and circumstances of this case” and my purported “relationship to the alleged victim” [ECF No. 48]. The United States opposes the Motion, maintaining that Defendant has failed to present a sufficient basis in law or fact to warrant recusal [ECF No. 52]. In Reply, Defendant reiterates his previously articulated arguments and advises of an additional matter which he states “could further add to the appearance of partiality”—namely, that I attended high school with one of the prosecutors in this case and attended his wedding nine years ago during my service as an Assistant United States Attorney in this district [ECF No. 62 p. 6].

Upon full review of the Motion, and fully advised in the premises, I see no proper basis for recusal. The Motion [ECF No. 48] is therefore DENIED.

There are a number of interesting lines in the motion:

Second, Defendant argues that recusal is warranted because former President Trump has made various public statements about me [ECF No. 48 pp. 6–8; ECF No. 62 p. 5]. As Defendant acknowledges, I have no control over what private citizens, members of the media, or public officials or candidates elect to say about me or my judicial rulings [see ECF No. 48 p. 7]. Nor am I concerned about the political consequences of my rulings or how those rulings might be viewed by “some in the media” [ECF No. 48 p. 7]. I have never spoken to or met former President Trump except in connection with his required presence at an official judicial proceeding, through counsel. I have no “relationship to the alleged victim” in any reasonable sense of the phrase [ECF No. 48 p. 1]. I follow my oath to administer justice faithfully and impartially, in accordance with the Constitution and the laws of this country. 28 U.S.C. § 453. And Defendant has identified no practice, much less an established practice, warranting a judge’s recusal because a party, witness, or alleged victim in a judicial proceeding makes public statements—positive or negative—about a judge who lacks any control over such statements.

***

This case, like the prior cited cases involving former President Trump, were randomly assigned to me through the Clerk’s random case assignment system. Period. I will not be guided by highly inaccurate, uninformed, or speculative opinions to the contrary.

***

Finally, Defendant identifies as an “additional matter” that I went to high school in the 1990s with one of the prosecutors assigned to this case and attended his wedding nine years ago while serving together as Assistant United States Attorneys in this district [ECF No. 62].2 This factor does not supply a basis from which a reasonable observer—equipped with all of the facts and circumstances—would question my impartiality. I maintained a professional friendship with the stated prosecutor during my time as a prosecutor (2013–2020), as I did with other colleagues within the United States Attorneys’ Office. As part of that professional friendship, I attended his wedding nearly a decade ago. I maintain no ongoing personal relationship with the prosecutor, nor have I communicated with him in years. In short, my personal friendship years ago with the prosecutor has no bearing or influence whatsoever on my impartial handling of this case or any other case in which he may appear as counsel of record. Nor has Defendant cited any authority to support the notion that a judge with former government service should recuse from a matter because, years later, a former colleague with whom the judge maintained a professional friendship appears in a case before her. That broad rule, absent more, would be destabilizing, and in any event, it does not supply a basis on this record to support disqualification.

11th Circuit rules that Trump's co-defendants cannot move their Georgia case to federal court

 The two opinions are here and here.  The Jeffrey Clark per curiam (W. Pryor, Rosenbaum, and Grant) opinion starts like this:

Jeffrey Clark appeals the order remanding his state criminal prosecution for conspiring to interfere in the 2020 presidential election and denying his request to remove the special purpose grand jury proceeding that preceded his criminal indictment. Clark argues that he is entitled to remove his state prosecution based on federal-officer jurisdiction, 28 U.S.C. § 1442(a)(1), and the special purpose grand jury proceeding based on federal-question jurisdiction, id. §§ 1331, 1441(a). We affirm.

Judge Rosenbaum concurs:

I agree with the Majority Opinion that Jeffrey Clark cannot remove his Georgia criminal prosecution to federal court under 28 U.S.C. § 1442(a)(1) (the “federal-officer removal statute”) because he is a former federal officer, and we have held that § 1442(a)(1) does not apply to former federal officers. But even if § 1442(a)(1) covered former federal officers, Clark still could not remove his Georgia prosecution to federal court under that statute. The federal-officer removal statute is not a get-out-of-statecourt-free card for federal officers. It allows a federal officer to remove his criminal prosecution from state court to federal court only if the action is “for or relating to any act under color of [their] office.” 28 U.S.C. § 1442(a)(1). But none of Clark’s charged conduct falls within the job description of his former positions as a federal officer. So Clark can’t satisfy the removal statute. 

Government responds (barely) to FPD's recusal motion

Is it me or is this a pretty bare-bones response from the government?  It's 1.5 pages and ends this way: "In summary, the Defendant’s motion does not present a sufficient legal or factual basis to support a determination that the Court should exercise its discretion to disqualify itself or otherwise recuse."

The FPD's office slammed the "conclusory response" in its 7-page reply.  It ends this way:

In short, the government does not accurately set forth the controlling legal standards governing Mr. Routh’s motion. It does not dispute any of the objective (and unique) facts upon which his motion is based. And its conclusory response, consisting of three inapt citations, otherwise fails to explain why the undisputed facts of this case might reasonably create an appearance of partiality in the mind of the public.

3. Finally, there is one new, additional matter that Mr. Routh must raise. 

After Mr. Routh filed his motion, the government advised defense counsel for the first time that one member of the prosecution’s team—Christopher Browne of the Justice Department’s National Security Section in Miami—attended high school with Your Honor, and Your Honor attended Mr. Browne’s wedding nine years ago. It is unclear why the government believed that this information was important enough to share with defense counsel but not important enough to include in its response. And it is unclear why, despite hundreds of able prosecutors in this District and around the country, the government elected to staff its team in this high-profile case with a prosecutor who enjoys a longstanding, personal relationship with the presiding judge. In the mind of the public, this fact could further add to the appearance of partiality.

The original post, discussing the PD's motion to recuse, is here.

Eleventh Circuit Rules on Havana Docks Case. Will it be the last time?

By John R. Byrne

A win for the cruise lines (at least for now) at the Eleventh Circuit in the Havana Docks case, a case that involves application of the Helms Burton Act. 

To set the stage, under the act, a US national who owns a claim to confiscated property has a private right of action against any person who traffics in that property. Havana Docks corporation brought a claim against various cruise lines, alleging that the Cuban government had confiscated property that it had the right to operate (e.g., docks and piers) and that the cruise lines "trafficked" in that property when using the docks and piers to bring tourists to Cuba between 2015 and 2019. 

We blogged many months ago about the win for Havana Docks at the district court level, which resulted in a $400m judgment against the cruise lines. But on appeal, two out of the three judges (Judges Pryor and Jordan) saw things differently.  The gist of their holding was that Havana Docks's right to operate the docks/piers (which flowed from a 99 year "concession" granted to it by the Cuban government) had expired in 2004, before the cruise lines' trafficking took place. 

But this case could be heading for en banc review. The majority conceded that the issue before them was "one of first impression" and "not easy." And Judge Brasher (who clerked for Judge Pryor, incidentally) dissented. Relying on the text on the statute, Judge Brasher reasoned (among other things) that the trafficking by the cruise lines didn't need to occur during the original concessionary period for Havana Docks to have a claim. 

If this goes en banc, it'll be hard to predict how this one will shake out...

Havana Docks 202310151 by John Byrne on Scribd

Fed PD moves to recuse Judge Cannon in Trump assassination case

 I've always respected and admired the Federal Public Defender's Office here in Miami.  Of course I'm biased because I'm an alum.  But alum or not, everyone must surely agree that they are courageous and fight.  Check out this motion to recuse Judge Cannon (file by AFPDs Kristy Militello and Renee Sihvola.  You may not agree with it, but it took chutzpah to file it.

It starts this way:

Mr. Routh stands accused of attempting to assassinate Donald J. Trump. He faces up to life in prison. This case has already attracted significant media attention. It will continue to do so, and this Court’s rulings are likely to face intense public scrutiny. This motion presumes that this Court would preside over this case impartially. However, given the heightened stakes and the public scrutiny, there should not be any doubts about even the appearance of impartiality of the presiding judge. 

Although Mr. Trump is the alleged victim here, he previously served as President of the United States. While in office, he nominated Your Honor to her current position as a U.S. District Judge on the Southern District of Florida. Your Honor thus owes her lifetime appointment to the alleged victim in this criminal case.

After Mr. Trump left office, he was charged in this District with 40 felony counts relating to his retention of classified documents. Your Honor recently presided over that criminal case, and ultimately dismissed the case against Mr. Trump. 

Mr. Trump is the current Republican candidate for President in next month’s election. On the campaign trail, he has repeatedly praised Your Honor for her rulings in his case. As the alleged victim here, he has a significant stake in the outcome of this case too. Were he to become President in the future, he would have authority to nominate Your Honor to a federal judgeship on a higher court were a vacancy to arise.

Taken together, these unprecedented facts and circumstances might create an appearance of partiality in the mind of the public. Accordingly, the Constitution and the federal recusal statute require Your Honor to recuse herself from this case.

Congratulations to Judge Damian!