Veterans Day

Rumpole has his yearly post up about Veterans Day.  It's a good read.

The courts are closed today, but what about your office?  Seems like most people are working. True?

Is your office closed today, on Veterans day?

Yes, my office is closed when the courts are closed. Yes, my office is closed when the schools are closed. No, my office is open except for holidays like Thanksgiving. No, my office is open when the stock market is open. No, my office is open every day.  

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FDC-Miami holds first Daddy-Daughter Dance

This is both incredible and awfully sad at the same time (via the Miami Herald):

The bureau hosted its inaugural Daddy-Daughter dance to create an enduring memory, one that can carry inmates to the outside world with a different perspective and offer daughters the hope that there will be more such moments. It is part of the bureau’s broader reentry program to reach out to the children and families of offenders and strengthen their bonds, critical for transitioning back home. “You are a key to the success of your father,” Federal Bureau of Prisons Director Charles E. Samuels Jr., told the 20 girls, aged 4 to 18, who had assembled to meet their fathers, all minimum-security, nonviolent offenders.
In a third-floor prison meeting space transformed into a ballroom with a fairytale theme, 13 fathers in suits and ties and tuxedos spent two hours with their girls, this long-held tradition unfolding without the harshness of uniforms and visiting rooms and prison walls. They danced. They swayed. They held tight. They laughed. They cried. And these fathers who have been gone for years remembered the chapters they had missed: birthdays, holidays, first tooth, first crush, first heartbreak.
Some of the girls are so young, they only know a father confined; others are old enough to remember what life was like when their father was home.
“I haven’t been there for so many special moments,” said inmate Michael Rangel, 40, his eyes welling up. The father of three daughters has been in prison almost three years for cargo theft and is scheduled to enter a halfway house in January. “I talk to them and email them all the time, but it’s not the same as being there.”

The whole article is worth a read, and there are some great pictures by Al Diaz at the Herald link.

6th Circuit upholds gay marriage ban, creates circuit split

It's an interesting debate about the role of judges.  Is it the judiciary's duty to defer to the will of the people or to provide a check against the majority while upholding our constitutional rights.  I think the dissent has the better of this one (here are both opinions):

Today, my colleagues seem to have fallen prey to the misguided notion that the intent of the framers of the United States Constitution can be effectuated only by cleaving to the legislative will and ignoring and demonizing an independent judiciary. The framers crafted Article III to ensure that rights, liberties, and duties need not be held hostage by popular whims. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

Meantime, Sandy Yates, the wife of Supreme Court litigant John Yates, posted in our comment section for yesterday's post:

Just to clarify a couple of points. The fish measured off shore had been frozen for 4 days. When remeasured on shore were put up a metal conveyor and dumped into a vat of water in August in Florida. Hmmm, do you think they may have thawed out. The average fish on shore were 1/2 on bigger than off shore. In addition the FWC officer testified he does NOT measure fish in accordance with federal law. Now, add the fact that the FWC expert witness provided a document with an analysis of measuring the fish the correct way those fish (even frozen) were mostly over 20 inches. Not for the clincher. While NOAA was running around getting this "paper shredding indictment", the head Law Enforcement officer for the whole US was in front of Congress for shredding 80% of his files while being investigated by the Inspector General's Office for abuse of fisherman. Ironic, don't you think.

Go get 'em Mrs. Yates!

"No, I'm not talking about Congress. I'm talking about the prosecutor. What kind of a mad prosecutor would try to send this guy up for 20 years or risk sending him up for 20 years?"

That was Justice Scalia today in the "fish case", Yates v. U.S., going after the government lawyer for his argument on the statute.   SCOTUSBlog has a summary of the oral argument, which looks like it was a rough ride for the SG's office:

Within minutes, Scalia leaned forward and, accusingly, told Martinez that he was defending the law and its use for someone who got only thirty days.  “What kind of sensible prosecutor does that?  Who do you have who exercises prosecutorial discretion?  Is it the same guy who brought Bond, last Term?” — a reference to a decision in which the Court had ruled that the Justice Department had gone too far in using a law against the spread of chemical weapons to prosecute a woman for trying to poison her husband’s lover.
Scalia pressed on, noting the potential for a twenty-year prison sentence under this law, and asking “what kind of mad prosecutor” would use that law in a case like this one?  Martinez weakly responded that the prosecutors had not asked for a twenty-year sentence against the fisherman.
Justice Ruth Bader Ginsburg then interjected, asking whether the Justice Department provided any guidance, “any kind of manual” to limit prosecutors.  Martinez answered that the manual for U.S. attorneys told them that, in choosing what crimes to charge, to go for the “most severe available.”
In view of that, Scalia retorted, the Court was going to have to be “much more careful” about how it interpreted federal criminal laws.  When Martinez tried to portray the fisherman as someone who ordered the destruction of evidence, disobeyed a federal officer, and worked out a cover-up scheme, Chief Justice John G. Roberts, Jr., commented: “You make him sound like a mob boss.”
Just what sentence did prosecutors recommend here, Justice Kennedy asked.  Martinez said twenty-one to twenty-seven months, but then added that thirty days here was “reasonable” and twenty years “would have been too much.”
The hearing’s tone had changed totally, and Martinez was on the defensive throughout the remainder of his time.  He tried to recover by going over the specific words and headings in the law, trying to show what Congress had intended for the law.
As he was nearing the end of his half-hour, Martinez was suddenly confronted by Justice Samuel A. Alito, Jr.   The lawyer, the Justice said, had a lot of arguments on the fine points about the law, but “you are asking us for something that is pretty hard to swallow,” that this law could be used for “really trivial matters.”
When Martinez protested that the law would not be used for “trivial matters,” Alito conjured up just such small offenses as throwing a single trout, illicitly caught, back into a lake, and then Justice Breyer asked about kicking a small ember away to try to conceal a forbidden campfire in a public park.  “You could multiple the examples beyond belief,” Breyer said.
In between those exchanges, Justice Kennedy commented acidly that the Court perhaps should no longer refer to the concept of “prosecutorial discretion” if it was open to use as in this case.
Martinez’s woe had started with Justice Scalia, and it never ended until he sat down.

Judge Hoeveler's retirement reception

Here he is with some of his colleagues from last week's reception honoring him.