Stolen Valor Act debated in High Court today

Hope everyone had a nice long weekend....

Today the Supreme Court is debating a fascinating case about how far the federal criminal code can be expanded.  The Stolen Valor Act makes to falsely claim to have been awarded military honors and decorations.  But are such lies covered by the First Amendment?  From the Washington Post:

The case has generated huge interest and divided First Amendment advocates, including the media, and veterans groups, who see the act as a necessary weapon to discourage what appears to a boomlet of self-aggrandizers.
According to a brief filed by the Veterans of Foreign Wars and two dozen veterans groups: “Pretenders have included a U.S. Attorney, member of Congress, ambassador, judge, Pulitzer Prize-winning historian and bestselling author, manager of a Major League Baseball team, Navy captain, police chief, top executive at a world-famous research laboratory, director of state veterans programs, university administrator, pastor, candidate for countywide office, mayor, physician, and more than one police officer.”
“This case is about theft, not lying in general,” wrote D.C. lawyer Michael T. Morley in the brief. “Alvarez, and others like him, have misappropriated for their own benefit an unearned share of the two centuries’ worth of goodwill and prestige associated with American military awards.”
But the U.S. Court of Appeals for the 9th Circuit in San Francisco agreed with Alvarez that the law did not meet the high standard courts must apply to attempts to restrict speech.
“Saints may always tell the truth, but for mortals living means lying,” Chief Judge Alex Kozinski wrote in response to the government’s request that the decision be reconsidered.
“Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship” and set up the government as “truth police” with the power to punish.
Other judges have seen it differently. The U.S. Court of Appeals for the 10th Circuit, in a separate Stolen Valor case, upheld the law’s constitutionality.
“As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech,” U.S. Circuit Judge Timothy M. Tymkovich wrote for another divided panel.

 Gotta love Kozinski....

Tony Mauro has a nice summary of what to look out for in today's argument here.  I will post the argument when it goes online.  Should be interesting.

What's better than one Pryor on the 11th Circuit?

Well, two Pryor's of course.  Today, President Obama officially nominated Jill Pryor (no relation to Bill Pryor) to the 11th Circuit, a day after Judge Jordan was confirmed to that Court. Judge Edmonson must be very proud -- his former clerk will get to serve on the court with him.

From the White House Press Release:

President Obama Nominates Jill A. Pryor to Serve on the US Court of Appeals

WASHINGTON, DC – Today, President Obama nominated Jill A. Pryor to serve on the United States Court of Appeals for the Eleventh Circuit.

“Jill A. Pryor has displayed exceptional dedication to the legal profession through her work and I am honored to nominate her to serve the American people as a judge on the United States Court of Appeals,” President Obama said. "She will be a diligent, judicious and esteemed addition to the Eleventh Circuit bench."

Jill A. Pryor is a partner at the law firm of Bondurant, Mixson & Elmore, LLP, in Atlanta, Georgia, where she specializes in complex business litigation at both the trial and appellate levels.

Pryor was born and raised in Harrisburg, Pennsylvania. She received her B.A. in 1985 from the College of William & Mary, graduating Phi Beta Kappa. She then attended Yale Law School, where she served on the editorial board of the Yale Law Journal and obtained her J.D. in 1988. After graduating from law school, Pryor clerked for the Honorable J.L. Edmondson of the United States Court of Appeals for the Eleventh Circuit. She joined Bondurant, Mixson & Elmore as an associate in 1989, becoming a partner at the firm in 1997. She represents both plaintiffs and defendants in the areas of business torts, corporate governance and shareholder disputes, class actions, trade secrets, intellectual property, fraud, and the Georgia and federal RICO laws.

Throughout her career, Pryor has been actively involved in the Atlanta legal community. She currently serves on the State Bar of Georgia Board of Governors and on the Board of Directors for the Georgia Legal Services Program. She has also served as President of the Georgia Association for Women Lawyers and as Chair of the State Bar of Georgia’s Appellate Practice Section. Additionally, Pryor was formerly a member of the Lawyers Advisory Committee of the United States Court of Appeals for the Eleventh Circuit as well as a member of the Executive Committee of the American Bar Association’s Council of Appellate Lawyers.

Judge Jordan confirmed 94-5!

Congratulations to the judge and his family. What a great addition to the 11th Circuit. He will be missed on the trial bench...

Glenn Sugameli has all of the scoop here, here, and here.

Judge Adalberto Jordan's vote at noon today

Barring any unforeseen roadblocks, he should be on the 11th today.

Here's the Herald with the latest.

Sen. Patrick Leahy quotes this blog regarding Judge Jordan

Check out Sen. Leahy's statement here (regarding Judge Adalberto Jordan's status before the Senate), which quotes this post from yesterday:

Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Judiciary Committee,

On the Nomination Of Judge Adalberto Jordan To The Eleventh Circuit

February 14, 2012

Republican Senators delayed a final vote on the nomination of Judge Adalberto Jordan of Florida even though the Senate voted 89-5 last night to end a Republican filibuster that has already prevented a vote for four months.  This is a consensus nominee who Senator Nelson has been strongly supporting and who Senator Rubio also supports.  He should have been confirmed four months ago.  He should have been confirmed last night after the overwhelming cloture vote.  Instead, obstruction needlessly delayed the Senate acting to fill the emergency judicial vacancy on the Eleventh Circuit.
Senator Nelson has worked hard for this nomination, working to get Judge Jordan’s nomination cleared by every Democratic Senators in October immediately after it was reported unanimously by the Judiciary Committee.  We were ready to vote in October.  We were ready to vote in November.  We were ready to vote before the end of the last session of Congress in December.  It is hard to believe that it is now the middle of February, over four months after Judge Jordan’s nomination was reported with the support of every Democrat and every Republican on the Judiciary Committee, and the Senate still has not voted to fill this judicial emergency vacancy affecting the people of Florida, Georgia and Alabama.  I appreciate why Senator Nelson is frustrated.  I understand why Hispanics for a Fair Judiciary and the Hispanic National Bar Association are, too.

Let me refer to some of the reporting on this.  One post begins:

“So, here’s the absurdity of our judicial confirmation process – the full Senate voted 89-5 to invoke cloture, meaning that Judge Jordan’s nomination to the 11^th Circuit would finally come to a vote.  But then Senator Nelson said that one Senator is holding up the merits vote by demanding 30 more hours of ‘debate’ post-cloture.  Senators Leahy and Boxer both then commented how ridiculous such a request was, but that’s the way it is.  It looks like we’ll have [to] wait another 30 hours for Judge Jordan to move up to the 11^th.  Silliness in our Congress . . . .”

The article in the South Florida Sun-Sentinel reports:
“South Florida lawyers praise him.  Both of Florida’s U.S. senators have recommended him.  And the Senate Judiciary Committee voted unanimously to approve his nomination.
But U.S. District Judge Adalberto Jordan of South Florida has been blocked for four months from rising to the 11^th Circuit Court of Appeals, the latest sign of a polarized and dysfunctional Senate.
A Senate filibuster that has kept Jordan waiting and the appellate court undermanned fizzled on Monday when the Senate voted 89-5 to move toward a final confirmation vote.
But Jordan is still waiting because one senator . . . objected to attempts to complete action on Monday . . . .”
I have not heard from any Republican Senators objecting to this Judge explaining what they find wrong with this highly-qualified Cuban American.   I am at a loss as to why Republican Senators continue to delay a vote on this outstanding nominee.  This nominee is beyond reproach.  This is another nomination battle that has nothing to do with the nominee and his qualifications.  This is another example of obstruction based on a collateral objective.  The people of Florida, Georgia and Alabama should not be made to suffer a judicial emergency vacancy when this highly-qualified nominee should be confirmed without further delay.  Nor did anyone come forward to explain the Senate Republicans’ delay for the last four months.   Cloture has been invoked by the Senate and the filibuster will be ended.   There was no good reason to continue to hold up a vote that has already been delayed for four months.
When I first became Chairman of the Judiciary Committee in 2001, I followed a time when Senate Republicans, who had been in the majority, had pocket filibustered more than 60 of President Clinton’s judicial nominations, blocking them with secret holds in backrooms and cloakrooms, obstructing more with winks and nods, but with little to no public explanation or accountability.  I worked hard to change that and to open up the process.  I sought to bring daylight to the process by making the consultation with home state Senators public so that the Senate Republicans’ abuses during the Clinton years would not be repeated.
When Senate Democrats opposed some of President Bush’s most ideological nominees, we did so openly, saying why we opposed them.  And when there were consensus nominees—nominees with the support of both Democrats and Republicans-- we moved them quickly so they could begin serving the American people.  That is how we reduced vacancies in the presidential election years of 2004 and 2008 to the lowest levels in decades.  That is how we confirmed 205 of President Bush’s judicial nominees in his first term.
Now we see the reverse of how we treated President Bush’s nominees.  Senate Republicans do not move quickly to consider consensus nominees, like the 15 still on the Senate Calendar that were reported unanimously last year and should have had a Senate vote last year.  Instead, as we are seeing today and have seen all too often, Senate Republicans obstruct and delay even consensus nominees, leaving us 45 judicial nominees behind the pace we set for confirming President Bush’s judicial nominees.  That is why vacancies remain so high, at 86, over three years into President Obama’s first term.  Vacancies are nearly double what they were at this point in President Bush’s third year.  That is why half of all Americans—nearly 160 million—live in circuits or districts with a judicial vacancy that could have a judge if Senate Republicans would only consent to vote on judicial nominees that have been favorably voted on by the Senate Judiciary Committee and have been on the Senate Executive Calendar since last year.
This is an area where we should be working for the American people, and putting their needs first. This is a nomination that has the strong and committed support of the senior Senator from Florida, Senator Nelson, as well as that of Senator Rubio, Florida’s Republican Senator.  Judge Jordan had the unanimous support of every Republican and every Democrat on the Judiciary Committee when we voted last October, although one Republican switched his vote last night to support the filibuster of Judge Jordan’s nomination. This is the nomination of a judge, Judge Jordan, who was confirmed to the district court by a vote of 93 to one in 1999, even while Senate Republicans were pocket filibustering more than 60 of President Clinton’s judicial nominees.
I regret that Republican Senators chose to delay a final vote on Judge Jordan’s confirmation.  He is fine man who, after emigrating from Havana, Cuba at the age of six went on to graduate summa cum laude from the University of Miami law school and clerk for Justice Sandra Day O’Connor on the U.S. Supreme Court.  He served as Federal prosecutor and Federal judge.   The needless delay of Judge Jordan’s confirmation is an example of the harmful tactics that have all but paralyzed the Senate confirmation process and are damaging our Federal courts.
It should not take four months and require a cloture motion to proceed to a nomination such as that of Judge Jordan to fill a judicial emergency vacancy on the Eleventh Circuit. It should not take more months and more cloture motions before the Senate finally votes on the nearly 20 other superbly-qualified judicial nominees who have been stalled by Senate Republicans for months while vacancies continue to plague our Federal courts and delay justice for the American people.  The American people need and deserve Federal courts ready to serve them, not empty benches and long delays.

Well done Senator.  Now let's get Judge Jordan confirmed!

Judge Adalberto Jordan confirmation stalled (briefly?)

So, here's the absurdity of our judicial confirmation process -- the full Senate voted 89-5 to invoke cloture, meaning that Judge Jordan's nomination to the 11th Circuit would finally come to a vote. But then Senator Nelson said that one Senator is holding up the merits vote by demanding 30 more hours of "debate" post-cloture. Senators Leahy and Boxer both then commented how ridiculous such a request was, but that's the way it is. It looks like we'll have wait another 30 hours for Judge Jordan to move up to the 11th. Silliness in our Congress....  (For lots of discussion, see Glenn Sugameli who is closely covering the process).

UPDATE -- Roll Call has this discussion of what happened:

Sen. Rand Paul (R-Ky.) is delaying the confirmation of Adalberto Jose Jordan to join the 11th U.S. Circuit Court of Appeals as well as a transportation bill in an effort to force Senate leaders to schedule a vote on his proposal to cut off aid to Egypt until Americans being held there are released.


The Senate voted 89 to 5 to end debate on Jordan’s nomination and now the Senate must wait 30 hours before voting to confirm Jordan, as Paul has made it known that he would object to anyone seeking to shorten the post-cloture period.

Senate Democratic leadership aides said talks with Paul are ongoing in an effort to work out a deal.

But if no agreement is reached, the vote would take place Wednesday morning, forcing the Senate to waste up to two days and halting progress on a surface transportation bill currently on the floor.

“What’s happened on the Senate floor tonight is just ridiculous,” said Sen. Barbara Boxer (D-Calif.), chairman of the Environment and Public Works Committee. “We are supposed to be on a highway bill, a bill that will protect 1.8 million jobs and create” more.

Just before the Senate adjourned for the evening, Sen. Maria Cantwell (D-Wash.), in announcing the Senate’s business for Tuesday, said Democrats expect Jordan to be confirmed Tuesday.

More from NPR here:

During the floor vote, Sen. Nelson expressed frustration at the tactic.


"Is it any wonder we can't get anything done around here?" he asked.

LINNING!

Your Monday Morning inspiration: The big news this morning is that Judge Jordan could be confirmed by lunch. Check back this afternoon for updates.

Judge Jordan to be confirmed Monday?

There's a very good chance of that according to Glenn Sugameli, who has been all over the judicial appointment process.  Here's the Senate Floor Schedule for Monday:

Following morning business, the Senate will proceed to Executive Session to consider Calendar #437, the nomination of Adalberto Jose Jordan, of Florida, to be United States Circuit Judge for the 11^th Circuit with one hour of debate equally divided and controlled between Senators Leahy and Grassley or their designees .

 Let's keep our fingers crossed.

Meantime, tonight was the big Federal Bar gala at the Hyatt.  It was packed with judges and lawyers.  Brett Barfield has done an unbelievable job as president of the organization.  Even the food was better tonight.  I think I had 8 of those mini-beef tacos.