Monday, April 25, 2016

zzzzzzzzzzzzzzzzzzz (UPDATED -- WAKE UP!)

For the zzzzzzzzz posters out there, check out Justice Thomas during oral argument last week:

UPDATE -- WAKE UP!! -- Paul Rashkind, appellate guru from the FPD's office, is headed back to the Supreme Court. Cert granted this morning in Manrique v.United States. Here's the 11th Circuit opinion.

The QP is: Should the Court grant certiorari to resolve the significant division among the circuits concerning the jurisdictional prerequisites for appealing a deferred restitution award made during the pendency of a timely appeal of a criminal judgment imposing sentence, a question left open by the Court’s decision in Dolan v. United States, 560 U.S. 605, 618 (2010).


Not JAFI much longer said...

Given the quality of the arguments being made last week, it doesn't sound like he missed much.

Anonymous said...

DOM: No need to pander to the negative commentators. In the memorable words of Justice Learned Hand, "Haters gonna Hate!"

not Posner said...

Apparently a judge asleep on the bench no big deal. According to a story in the Tampa Bay Times, "Unless an official complaint is filed, nothing will happen..." See

Judge asleep? Doesn't matter, Tampa Bay Times, By Molly Moorhead

"His own bailiffs say Judge David Seth Walker dozed off during part of a criminal trial this week, and it appears no one is going to do anything about it."

Florida Bar Rule 4-8.3(b) Reporting Misconduct of Judges. A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.

So apparently a judge sleeping through part of a criminal trial does not rise to the level of a Rule 4-8.3(b) complaint.

The bigger problem is with the SCOTUS itself, in violation of Article III, and, inter alia, its practice of selectively hearing relatively few petitions for writ of certiorari.

Article III, section 1 begins, "The judicial power of the United States, shall be vested in one Supreme Court,..."

Article III, section 2 begins, "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States,.."

Judge Richard Posner has famously pointed out, the SCOTUS "isn’t a real court". See "Posner has 'absolutely no desire' to join SCOTUS, which 'isn’t a real court'", by Debra Cassens Weiss, American Bar Association online daily news,

""Well, I don’t like the Supreme Court," Posner says. "I don’t think it’s a real court. I think of it as basically ... it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. You should take what comes. When you decide which case to hear it means you’ve decided the cases ahead of time."

There is no provision in the Constitution that I know of that allows the SCOTUS to pick and choose a few cases to hear. Posner is right: "You should take what comes."

Not only does the SCOTUS pick and choose cases, it does so outside the mandate of Article III, by using "cert. pool", a pool of law clerks where a randomly selected clerk reads, prepares and circulates a memo on a petition for writ of certiorari for all of the Justices participating in the pool. Currently all Justices except Justice Alito participate in cert. pool.

Article III does not provide for the elevated status of 39 or so SCOTUS law clerks, who after a year or so of service are hired by private firms with a signing bonus of $250,000+ and a salary of $250,000+. The judgment of the law clerks is likely impaired by half a million dollars, for openers.

Article III does not provide for the U.S. magistrate judge scheme either, 28 U.S.C. Chapter 43, lawyers hired by the district court, not nominated by the President, not confirmed by the U.S. Senate for a lifetime appointment. These magistrates are a complete abomination in the U.S. legal system, bootlicks to the district court who hired them for either a 4 or 8 year term.

Not JAFI much longer said...

If a sleeping defense atty isn't ineffective assistance, who cares if the judge is asleep?