The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
Lots of buzz around town that Judge Roy Altman is being considered for the open Senate seat once Marco Rubio is confirmed as Secretary of State. There is also talk about Altman being named Ambassador to Israel and also U.S. Attorney. Each of these positions would be truly fantastic for Judge Altman.
The last district judge who held a number of different positions was Tom Scott -- a district judge, the U.S. Attorney, and state judge.
How will Trump's win affect the Supreme Court and death penalty jurisprudence? Thomas and Alito are likely to retire during the next four years, so Trump will get to replace them. That will keep the Court at 6-3 for a long long time.
The big question is what happens with Sotomayor. Some say she should immediately retire to allow Biden to replace her now (and not have another RBG situation). Others say it's too late:
Second, the calendar: The Senate is out of session right now, and will not reconvene until Tuesday. They’ll recess for the week of Thanksgiving, return to Washington to speed-run the confirmations of Biden’s lower court nominees, and then adjourn for good on December 20. When the new Congress begins on January 3, Democrats will be out of power, and one of several Republican senators named John will hold the Senate gavel instead. So, if you are doing the math at home, even if Sotomayor were to retire today, and even if the White House had a nominee ready to announce tonight, that leaves Democrats five weeks—41 days total, and 24 days excluding holidays, recesses, and weekends—to get it done.
Another topic to watch is the death penalty:
Throughout his campaign, President-elect Donald Trump signaled he would resume federal executions if he won and make more people eligible for capital punishment, including child rapists, migrants who kill U.S. citizens and law enforcement officers, and those convicted of drug and human trafficking.
“These are terrible, terrible, horrible people who are responsible for death, carnage and crime all over the country,” Trump said of traffickers when he announced his 2024 candidacy. “We’re going to be asking everyone who sells drugs, gets caught, to receive the death penalty for their heinous acts,” he added.
While it remains unclear how Trump would act to expand the death penalty, anti-death penalty groups and criminal justice reform advocates say they are taking his claims seriously, noting the spree of federal executions that occurred during his first term.
“We’re going to fight this tooth and nail, and we’re going to seek to uphold the constitutional principals that do not call for this expansion,” said Yasmin Cader, an ACLU deputy legal director and the director of its Trone Center for Justice and Equality.
At the tail end of Trump’s first term, 13 federal inmates were put to death — even as the pandemic led states to halt executions because of Covid concerns in prisons. The cases included the first woman executed by the federal government in nearly 70 years; the youngest person based on the age when the crime occurred (18 at the time of his arrest); and the only Native American on federal death row.
No president had overseen as many federal executions since Grover Cleveland in the late 1800s, and the U.S. government had not executed anyone for more than 15 years until Trump revived the practice.
Yesterday, the Eleventh Circuit reversed the dismissal of a defamation claim against CNN. And Judge Carnes didn't mince words in his concurring opinion.
To set the stage, the case involved Project Veritas (an investigative journalistic organization) suing CNN because it falsely reported that Twitter had suspended Project Veritas for “promoting misinformation.” In truth, Twitter had suspended Project Veritas for disclosing a person's home address during a broadcast (Veritas tweeted a video of reporters trying to interview a Facebook VP and you could see a house number in the background).
Part of CNN’s argument to the Eleventh Circuit was that the difference between those two things-- suspension for (accurately) disclosing a home address and suspension for promoting misinformation--was "immaterial."
Judge Carnes's concurrence begins like this: "If you stay on the bench long enough, you see a lot of things. Still, I never thought I’d see a major news organization downplaying the importance of telling the truth in its broadcasts. But that is what CNN has done in this case."
Full opinion excerpted here.
Veritas by John Byrne on Scribd
The Court was notified on November 6, 2024, that attorneys in the Southern District of Florida have received fraudulent Notices of Electronic Filing (NEFs). These notices are not official NEFs and are not sent by the Court. The emails are sent from the following email address: updates2@uscourts.gov.ecf.digital (link sends e-mail)
Please disregard these emails and do not click on any links or attachments. A sample email will be posted on our website under “News & Announcements.” If you doubt the authenticity of any NEF received, please validate the information directly through CM/ECF or contact the Clerk’s Office.
Who will be the next U.S. Attorney?
Will Judge Cannon be elevated to the 11th? AG?
Will Alito and Thomas retire?
How long till we get nominees for the open judicial seats?
Will Miami ever go blue again? Florida?
Who will run in 4 years? Vance versus who?
Will Biden issue a bunch of pardons? His son?
What role will Kash Patel have?
What else you got?
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.
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.
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.
