Add Robin Rosenbaum to SCOTUSblog's shortlist

Tom Goldstein puts Rosenbaum along with Jordan and Pryor (Jill), right outside of the top 5:

Three judges on the Eleventh Circuit easily could appear on this list of serious candidates from the courts of appeals, although I consider them somewhat less likely for various reasons.
Hon. Aldaberto Jordan was confirmed to the Eleventh Circuit by a vote of 94-5. He previously served as a district court judge, confirmed 93-1.
Hon. Jill Pryor was unanimously confirmed to the Eleventh Circuit.
Hon. Robin Rosenbaum was unanimously confirmed to the Eleventh Circuit, and previously served as a district judge (confirmed 92-3) and worked as a prosecutor.

Justice Kagan knows that there are two Zoolander movies!

She says so in today's dissent in Lockhart v. United States:

JUSTICE KAGAN, with whom JUSTICE BREYER joins, dissenting.

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new StarWars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.” Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California? And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.” Surely a person would have cause to protest if punished under that provision for vio­lating a traffic statute. The reason in all three cases is the same: Everyone understands that the modifying phrase—“involved with the new Star Wars movie,” “in New York,” “relating to insider trading”—applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case. Avon-dale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2). The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list. But properly read, the modifier applies to each of the terms—just as in the examples above. That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children. And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty. I respectfully dissent.

The Empire Strikes Back... on SCOTUSblog

Senator Chuck Grassley has responded to President Obama on SCOTUSblog.  You gotta love that a law blog is hosting a debate between the President and the chair of the judiciary committee.  It's incredible when you think about it.  Well, here's the intro:

The Constitution grants the authority to nominate and approve Supreme Court Justices to coequal branches of the federal government. The President has authority to nominate a candidate for the Supreme Court, and the Senate has the authority to consent or withhold consent.
However, in his post, President Obama six times states that he “appoints judges to the Supreme Court.” From that fundamental misunderstanding, he reveals that the person he will nominate, not appoint, will be someone whose decisions are not tied to the Constitution’s text.
Like most of his nominees, the President pays lip service to the notion that judges are to “interpret the law, not make the law,” but then submits that in cases where “the law is not clear” his nominee’s views “necessarily will be shaped by his or her own perspective, ethics, and judgment.” And of course, his nominee will “arriv[e] at just decisions and fair outcomes” based on the application of “life experience” to the “rapidly changing times.”
The President, candidly to his credit, has unambiguously informed the American people that his nominee will apply his or her own ethics and perspectives in deciding cases. This goes to the heart of the matter and it is a question that confronts the American people during this presidential election.

Meantime, it's NY vs. California in the Apple vs. FBI showdown.  A New York federal magistrate has correctly ruled that Apple does not need to help the government break into one of its customer's phones:

A federal magistrate judge on Monday denied the United States government’s request that Apple extract data from an iPhone in a drug case in New York, giving the company’s pro-privacy stance a boost as it battles law enforcement officials over opening up the device in other cases.

The ruling, from Judge James Orenstein in New York’s Eastern District, is the first time that the government’s legal argument for opening up devices like the iPhone has been put to the test. The denial could influence other cases where law enforcement officials are trying to compel Apple to help unlock iPhones, including the standoff between Apple and the F.B.I. over the iPhone used by one of the attackers in a mass shooting in San Bernardino, Calif., last year.

Judge Orenstein, in his 50-page ruling on Monday, took particular aim at a 1789 statute called the All Writs Act that underlies many government requests for extracting data from tech companies. The All Writs Act broadly says that courts can require actions to comply with their orders when not covered by existing law. Judge Orenstein said the government was inflating its authority by using the All Writs Act to force Apple to extract data from an iPhone seized in connection with a drug case.

The order is here. 

And if you want some local news, we have West Boca banker Richard Ohrn who is charged with faking getting lost at sea.  From the Sun-Sentinel:

Ohrn on March 31, 2015, set a rented, blood-stained fishing boat adrift in the Atlantic Ocean, used an inflatable boat to motor back to shore and then fled to Georgia in a pickup truck, according to a Palm Beach County sheriff's report.
That triggered more than two days of rescuers searching by air and sea over 3,100 square miles for someone who had actually slipped away to a rented house in Albany, Ga. — all to try to escape mounting costs from a lawsuit, according to the report.
Now Ohrn, 45, faces a felony charge of communicating false distress to the U.S. Coast Guard, according to a grand jury indictment filed Thursday.

Ohrn knowingly caused "a false distress message" that prompted the Coast Guard "to attempt to save lives and property when no help was needed," according to the indictment.
The Coast Guard last year estimated that it cost nearly $400,000 for the aircraft expenses alone in the search for Ohrn.

 Only in the Southern District of Florida!

"Can you give me an area [of law] where a misdemeanor violation suspends a constitutional right."

That was Justice Thomas' first question in over 10 years.  Apparently he asked a bunch of questions.  From the Huffington Post:

Justice Clarence Thomas, near the end of a little-noticed criminal law case involving issues of domestic abuse and the potential loss of gun rights, asked his first question from the Supreme Court bench in 10 years.
"Can you give me an area [of law] where a misdemeanor violation suspends a constitutional right," Thomas asked of the federal government's lawyer, who was arguing that a federal ban on gun ownership for certain persons who are convicted of domestic violence offenses at the state level should apply if the offense was committed "recklessly."
Ilana Eisenstein, the assistant solicitor general arguing the case, had asked if anyone had more questions for her. That's when Thomas, in his booming baritone, spoke up, asking a lengthy string of questions about an issue so far unexplored in the hearing.
He wanted to know "how long" the suspension of Second Amendment rights was for persons prohibited under federal law to possess firearms, and he pressed Eisenstein to name any other legal analog where the federal government could permanently curtail constitutional rights following a conviction for an unrelated offense.
"Let's say that a publisher is reckless about the use of children ... in indecent displays," he said, and wondered if the government then could suspend that publisher's right of free press permanently.

"Senator Rubio is reviewing it and deciding how to proceed."

That was Marco Rubio’s spokesman Alex Burgos about the nomination of Mary Barzee Flores to the federal bench.  But his statement makes no sense since Rubio supported the nomination in the first place.  Presidential politics stink.

The Miami herald covers it here:

It's no wonder U.S. Sen. Marco Rubio recommended seasoned Miami lawyer Mary Barzee Flores to fill an opening on the busy federal judiciary in South Florida more than a year ago.
She worked her way through the University of Miami and its law school, spent more than two decades as an assistant federal public defender and state circuit court judge, then joined a top commercial law firm before applying for a coveted federal judgeship.
“What a spectacular judge,” said Miami lawyer Edward Blumberg, a former president of the Florida Bar Association, recalling his experience trying a complex medical malpractice case in front of her. “She's one of the best judges I've seen statewide.”
Rubio thought so, too. But since Barzee Flores' nomination by President Barack Obama a year ago, the Miami Republican now running for his party's presidential nomination has held up her confirmation by not allowing the Senate Judiciary Committee to move forward with it.
Rubio, who had recommended Barzee Flores along with his Florida colleague, U.S. Sen. Bill Nelson, has not submitted a so-called blue slip that would set the wheels in motion for her confirmation — a decision seemingly in lockstep with the GOP-led Senate’s strategy to “slow-walk” the Democratic president’s judicial nominees since early last year. Only 16 federal district and appellate judges have been confirmed since last year by the Senate, including four nominated after Barzee Flores. The president nominated her on Feb. 26, 2015, and Nelson, a Democrat, returned his blue slip for her confirmation immediately.
Rubio's critics, including some in the Republican Party, say his dilatory strategy is indefensible because, in Barzee Flores, the senator is blocking an ideal candidate for a federal judgeship that has been vacant for almost two years. Indeed, the position has been deemed by the court as a “judicial emergency,” leaving other federal judges with heavier caseloads in South Florida.
“I've been honestly shocked by his lack of responsibility as a U.S. senator,” said Miami lawyer Tom Spencer, a Republican who supported Rubio against Democratic challenger Charlie Crist for the Senate in 2010, but backed former Florida Gov. Jeb Bush during this presidential primary season. “She's an excellent judge. There is absolutely no reason for him not to move forward with her confirmation. It's an absolute outrage and slap in the face of the people of Florida.”

Read more here: http://www.miamiherald.com/news/politics-government/article63008137.html#storylink=cpy