Wednesday News & Notes -- judicial nomination edition

1.  Lots of media coverage about the White House leaving Will Thomas' name off of the list of renominated judges.  Here's the HuffPost:

The White House has thrown in the towel in trying to confirm William Thomas to a federal court seat in Florida, signaling an end to a puzzling case of Sen. Marco Rubio (R-Fla.) blocking his own judicial nominee.
In a pile of about 200 nominees President Barack Obama resubmitted to the Senate at the start of the year, Thomas was noticeably absent. An administration official confirmed Tuesday that his resubmission isn't coming.
"The nomination of Judge William Thomas was returned by the Senate and Senator Rubio has made his objection clear, so the President chose not to renominate him," the official told The Huffington Post.
Thomas would have made history, if confirmed, as the first openly gay black man to serve as a federal judge.
Rubio has been single-handedly blocking Thomas for months, despite recommending him to Obama in 2012 as a nominee to the U.S. District Court for the Southern District of Florida. Rubio indicated in September he would not submit his "blue slip" to the Senate Judiciary Committee -- a courtesy, but not a hard rule, honored in the committee that allows a home-state senator to advance or hold up a nominee. Florida's other senator, Bill Nelson (D), submitted his blue slip months ago.
Sen. Patrick Leahy (D-Vt.), who chairs the Senate Judiciary Committee, has hinted in the past that he would revisit the blue slip process if Republicans abuse it. Asked for his thoughts on the White House sinking Thomas' nomination after Rubio used the blue slip rule to block him, Leahy said only, "Let me find out about that one."
There's a particular urgency to filling this Florida judgeship, which has been vacant for more than 20 months. The court backlog is so bad that the Administrative Office of U.S. Courts has deemed it a “judicial emergency."
Rubio spokeswoman Brooke Sammon said Tuesday she had nothing new to say regarding why Rubio became so adamant about blocking Thomas. She pointed to a past comment on the senator's concerns with the nominee.
"The nomination of Judge Thomas has also been thoroughly reviewed, and Senator Rubio has determined that Thomas’s record on the state court raises serious concerns about his fitness for a lifetime federal appointment. Those concerns include questions about his judicial temperament and his willingness to impose appropriate criminal sentences, particularly in the two high-profile cases of Michele Traverso and Joel Lebron last year. After reviewing Thomas’s record, Senator Rubio cannot support moving forward with the nomination," Sammon said.
HuffPost previously reviewed materials provided by Rubio's office that outlined the senator's justification for sinking Thomas' nomination, and nothing egregious stood out in either of the two cases. Instead, Rubio appears to be critical of Thomas for being too lenient in one case and too emotional in the other.
Florida Democratic lawmakers say Rubio's opposition is political as he tries to win back support from tea party members after angering them by advocating comprehensive immigration reform in 2012. Rubio's name has also been floated as a potential 2016 presidential contender.
"Judge Thomas is a well-qualified jurist," Rep. Alcee Hastings (D-Fla.) told HuffPost in the fall. "There is a serious underrepresentation of minorities on the bench and partisan obstructionism isn’t making it any better."

I'm not sure how the process works now.  Will the JNC reopen the interview process for that slot or will it send up the names it sent previously?

2.  Meantime, the Dems are not too happy with the President about the nominees in Georgia:

U.S. Rep. David Scott, D-Atlanta, has asked to testify against President Barack Obama’s judicial nominees for Georgia, another twist in a public dispute that pits Georgia’s Democratic members of Congress and civil rights community against the first black president’s White House.
Scott wrote a letter to Senate Judiciary Committee chairman Patrick Leahy, D-Vt., on Friday to request an appearance at a yet-to-be scheduled hearing on a slate of six Georgia nominees.
Democrats have complained of being shut out of negotiations between White House officials and Georgia’s Republican senators, who have the power to block committee consideration for home-state judicial nominees by “blue slip” custom enforced by Leahy. Democrats are upset that only one of the six nominees is a minority, that Georgia Court of Appeals Judge Michael Boggs voted to keep the 1956 version state flag – with its Confederate battle emblem -- when he was in the state Senate and that attorney Mark Cohen defended the state’s voter ID law (even though he did so on behalf of then Attorney General Thurbert Baker, a Democrat).
Wrote Scott:

“If confirmed, the federal bench in Georgia will not reflect the current demographics of the state for at least another generation.  There will soon be only one active African-American district court judge in Georgia.  In addition, the views of some of these nominees reflect the regressive politics of the past.  I want to share some very important and critical background information with the Committee before these nominations are considered.
“It is an abomination that these nominees for lifetime appointment were drafted in secret, not vetted by any legal groups among the President’s supporters, and announced on a holiday weekend. We must not allow lifetime appointed judges to be rammed through the hearing process without sufficient input from the people who will be affected by their future judicial actions.”

 3.  There's also an opening in Alabama:

Civil rights advocates are encouraging President Barack Obama to nominate an African-American to the 11th U.S. Circuit Court of Appeals, which would be a first from Alabama.
The high-level court, one step below the U.S. Supreme Court, has had only two black judges in its history, both from Florida.
The latest opening — created when Judge Joel Dubina of Montgomery took semi-retirement in October — will be the first chance a Democratic president has had to appoint someone from Alabama to the 11th Circuit, which was created in 1981.
Race is a significant issue for the Deep South circuit, which has a combined black population of about 7.2 million. The 11th Circuit hears appeals from Florida, Georgia and Alabama, and is a source of many high-profile discrimination cases involving voting, employment and redistricting.
Rep. Terri Sewell, D-Birmingham, is the lone black member of Alabama’s congressional delegation and said diversity should be a priority.
“I think now is not the time to falter on the president’s commitment to diversifying the bench, and that is especially true on the 11th Circuit,” Sewell said Tuesday. “Alabama has some very talented African-American lawyers who should be considered.”
And U.W. Clemon, Alabama’s first black federal judge who is now in private practice in Birmingham, is also hoping for a black nominee.
“It would be historic,” Clemon said.
The Alabama Democratic Party and an advisory committee to Sewell have interviewed several black candidates for the 11th Circuit job, and many of their names have been forwarded to the White House for consideration.

The President has resubmitted 64 judicial nominees to the Senate...

...including Robin Rosenbaum and Jill Pryor.  

Notably, William Thomas was left off of the list.  This really is too bad as he never got his chance for an up or down vote with the Senate.  The federal judiciary's loss is the state court's gain.  

"At the cost of being blunt, permit me to resort to scatological commentary to tell you Joel that you're about the most untrustworthy, double-dealing sack of s--t I've met I can't remember how long."

That's your quote of the day from a bankruptcy court filing by Sandy Rosen, a retired attorney and bridge player, in a letter to Joel Tabas.  John Pacenti covers the story here.

Oh, and FYI:

sca·tol·o·gy  (sk-tl-j, sk-)n. pl. sca·tol·o·gies

1. The study of fecal excrement, as in medicine, paleontology, or biology.

Great New York Times articles this weekend

The first is Adam Liptak's look at how two different jurisdictions are trying new approaches to make sure Gideon's promise is upheld:

Their proposed solutions reflect competing schools of legal thought. The approach in Washington State is a top-down exercise of federal power, pushing lawyers to make sure they meet with their clients, tell them their rights, investigate their cases and represent them zealously in plea negotiations and at trial.

The one in Comal County, Tex., is a bottom-up appeal to the marketplace. Defendants there will soon be able to use government money to choose their lawyers in much the same way that parents in some parts of the country use government vouchers to pay for grade school.

The county calls it “client choice.” Another name: Gideon vouchers.

In Washington, Judge Robert S. Lasnik drew on Supreme Court decisions involving school busing and prison overcrowding to impose a federal monitor on two Washington cities that had, he found, failed to provide meaningful representation to poor criminal defendants.

Judge Lasnik, of the Federal District Court in Seattle, found that the cities of Mount Vernon and Burlington had effectively instituted a “meet and plead” system in which lawyers handling 500 cases at a time would “often meet their clients for the first time in the courtroom, sometimes with a plea offer already in hand.”

“The system is broken to such an extent,” he wrote, “that confidential attorney-client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned.”

The second is an editorial about how bad prosecutorial misconduct has become and urging something to be done about it:

Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable. Last month, Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.”       

***

 Judge Kozinski was right to castigate the majority for letting the prosecution refuse to turn over evidence “so long as it’s possible the defendant would’ve been convicted anyway,” as the judge wrote. This creates a “serious moral hazard,” he added, particularly since prosecutors are virtually never punished for misconduct. According to the Center for Prosecutor Integrity, multiple studies over the past 50 years show that courts punished prosecutorial misconduct in less than 2 percent of cases where it occurred. And that rarely amounted to more than a slap on the wrist, such as making the prosecutor pay for the cost of the disciplinary hearing.       

Brady violations are, by their nature, hard to detect, but Judge Kozinski had no trouble coming up with more than two dozen examples from federal and state courts just in the last few years, and those are surely the tip of the iceberg. According to the National Registry of Exonerations, 43 percent of wrongful convictions are the result of official misconduct.

The Brady problem is in many ways structural. Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt. The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely. As Judge Kozinski wrote, “Some prosecutors don’t care about Brady because courts don’t make them care.”

Courts should heed Judge Kozinski’s call, but it will take more than judges to fix the problem. Prosecutors’ offices should adopt a standard “open file” policy, which would involve turning over all exculpatory evidence as a rule, thus reducing the potential for error.

Fighting prosecutorial misconduct is not only about protecting the innocent. It is, as Judge Kozinski wrote, about preserving “the public’s trust in our justice system,” and the foundation of the rule of law.

I have been calling for open file reform for a long time and have never heard a good response about why we shouldn't have open files from the government.  If any current prosecutor would like to debate this issue, I will set it up with one of the local organizations.

Time to pay your dues

Just in case you didn't get the e-blast today from the Clerk's office:

Pursuant to Administrative Order 2012-4, all members of the Bar of the USDC-SDFL, are required to pay a renewal fee of $25.00 starting in 2012, and every other year thereafter. The Court will begin accepting fees for the 2014 renewal cycle on or aboutJanuary 6, 2014. Failure to pay the 2014 renewal fee before the deadline of April 14, 2014, will result in a $50 late fee and deactivation of the attorneys CM/ECF account. If 2012 renewal and late fees are not paid by April 14, 2014, the attorney will no longer be a member of the USDC-SDFL Bar and must reapply for membership. Please visit our website [www.flsd.uscourts.gov] for information