Adalberto Jordan makes SCOTUS shortlist

Yesterday I raised the possibility of President Obama nominated 11th Circuit Judge Adalberto Jordan:

That brings up an interesting idea... what about Obama nominating Judge Jordan?  A moderate, former prosecutor.  He would be the first Cuban-American on the Court.  He clerked for Justice O'Connor and he even played baseball at UM.  He was confirmed 93-1 for the district seat and 89-5 for the 11th Circuit, so he sailed through.  He would also be the first Floridian on the Court, something I have discussed before.

Today, the New York Times also lists Jordan as a potential candidate:

Adalberto J. Jordan

AGE 54.

CURRENT ROLE Judge on the United States Court of Appeals for the 11th Circuit.

BACKGROUND Hispanic man. Born in Cuba. Attended University of Miami School of Law. Clerked for Justice Sandra Day O’Connor, a Reagan appointee. A former federal prosecutor. Appointed to Federal District Court by President Bill Clinton in 1999 and elevated to the appellate court by Mr. Obama in 2012. Confirmed 94 to 5, with 41 Republicans voting in favor.

DISCUSSION Judge Jordan would be the second Hispanic and first Cuban-American justice on the Supreme Court. The White House may calculate that a decision by Republicans to block him could have political consequences in places with sizable Latino voting populations — including his home state of Florida, a swing state in presidential elections, which also has a Senate election this year.

SCOTUSBlog's Tom Goldstein hasn't mentioned Jordan yet.  His money is on Loretta Lynch.  But he does say this:

Minority voters are a different matter.  Traditionally, black and Hispanic turn-out has trailed white turn-out.  In the 2004 election, the percentages were white 67.2%, black 60.0%, and Hispanic 47.2%.  In 2008, they were white 66.1%, black 64.7%, and Hispanic 49.9%.  The 2012 election was the first in which the proportion of black turn-out exceeded that of whites.  The percentages were white 64.1%, black 66.2%, and Hispanic 48.0%.
Overall, in 2012, the white proportion of the voting population decreased to 71.1% and the minority proportion increased to 28.9% (22.8% black and Hispanic).  For that reason, many attribute President Obama’s reelection to minority turn-out.
The best candidate politically would probably be Hispanic.  Hispanic voters both (a) are more politically independent than black voters and therefore more in play in the election, and (b) historically vote in low numbers.  In that sense, the ideal nominee from the administration’s perspective in these circumstances is already on the Supreme Court:  Sonia Sotomayor, the Court’s first Latina.

Some quick thoughts on Scalia and going forward

Love him or hate him, he was the most gifted (and entertaining) writer we have ever seen on the Court. "Applesauce" "Jiggery-pokery" "Argle-Bargle" "SCOTUScare"

And he was not at all predictable (like Alito/Thomas). In fact, he jokingly called himself the "best friend" of criminal defendants. And he was!  He was the lone vote to strike down he sentencing guidelines many years before Booker. 

He led the charge on the confrontation rights of those accused of crimes. See, e.g., Melendez-Diaz v. Massachusetts (5-4 opinion where Scalia was deciding vote in favor of criminal defendant).  He was much more defense oriented than Breyer or Kagan, that's for sure.

Even on 4th Amendment issues, he was much better than the so-called liberals.  Check out his dissent in Maryland v. King (the DNA case): "The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. These DNA searches have nothing to do with identification. ... If the Court’s identification theory is not wrong, there is no such thing as error. ... The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence." 

He also has written majority opinions rejecting infrared surveillance, GPS tracking of cars, and dog sniffs of our homes.  

Of course, he wasn't perfect (see gay marriage, Bush v. Gore, etc), but he was by far the most interesting Supreme Court Justice in our lifetime. RIP.

But now the fight comes.  Who can get confirmed?

Donald Trump said last night in the GOP debate that he would nominate someone like Judge William Pryor.  Judge Pryor and I had this case where we butted heads.  He's also had this recent battle with Judge Jordan.  

That brings up an interesting idea... what about Obama nominating Judge Jordan?  A moderate, former prosecutor.  He would be the first Cuban-American on the Court.  He clerked for Justice O'Connor and he even played baseball at UM.  He was confirmed 93-1 for the district seat and 89-5 for the 11th Circuit, so he sailed through.  He would also be the first Floridian on the Court, something I have discussed before.

So, what do you think?  Is Judge Jordan a viable choice for President Obama?

RIP Justice Scalia

Wow, this is sad news. Everyone is talking replacement right now, but we should give the guy his due. He will be remember as the best writer ever on the Supreme Court. And, although Rumpole and I disagree on this, he is one of the best Justices for criminal defendants and criminal justice issues. More to follow...

BREAKING -- Judge Abdul K. Kallon nominated to 11th Circuit

This is big news.  The nomination comes out of Alabama to fill Judge Dubina's seat.  This would be the first African American judge to serve on the 11th Circuit out of Alabama.  More to follow...

(H/T Glenn Sugameli).

Huge win for the FPD's office...

...in the Florida Supreme Court for Tracy Dreispul who raised the issue in the 11th Circuit.  This is going to affect a lot of cases.

This case is before the Court for review of a question of Florida law certified by the United States Court of Appeals for the Eleventh Circuit that is determinative of a cause pending in that court and for which there appears to be no controlling precedent. We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. In United States v. Clarke, 780 F.3d 1131 (11th Cir. 2015), the court certified the following question to this Court:

Florida law prohibits a person from “own[ing] or . . . hav[ing] in his or her care, custody, possession, or control any firearm . . . if that person has been . . . [c]onvicted of a felony in the courts of [Florida].” Fla. Stat. § 790.23(1). For purposes of that statute, does a guilty plea for a felony for which adjudication was withheld qualify as a “convict[ion]”?

Id. at 1133. Section 790.23(1)(a), Florida Statutes (2008), in pertinent part, makes it a criminal offense for a person to own or have in his or her care, custody, possession, or control any firearm if that person has been convicted of a felony in the courts of this state.1 Thus, this Court is asked by the Eleventh Circuit to determine if, under Florida law, a person is “convicted” for purposes of that statute if the person has entered a plea of guilty to a felony offense but adjudication for that offense has been withheld. For the reasons that we explain, we answer the certified question in the negative and hold that for purposes of section 790.23(1)(a), a guilty plea for a felony for which adjudication was withheld does not qualify as a “conviction” under that statute.

WOW!

Love is in the air...

... at the PD's office!  Check out this nice Herald article about two APDs:

It was not love at first sight, no. Brad Horenstein and Daniela Torrealba met when they were taken to lunch by their respective bosses while working as interns at the Miami-Dade Public Defender’s Office. Their reaction was … well, meh.
"I got a very bad reading," recalls Horenstein, 35. "She was so serious. I didn’t talk to her for a year after that."
From Torrealba, 29: "I didn’t even remember meeting him at the lunch until he reminded me about it. I was in my final semester of law school and I had blinders on."
A few months later the assistant public defenders were singing a different tune — quite literally. On a road trip to Orlando for a legal conference, they realized how much they loved the same music. They sang along to Kavinsky’s Nightcall and Radiohead’s Idioteque and Crystal Castles’ Vanished. They talked. And talked. And talked.
Horenstein was smitten, but it still took him four months to ask her out. Their first date, in February 2013, was at Scarpetta, a high-end Italian restaurant in Miami Beach’s Fontainebleau. They finished the night at The Corner, a hip bar downtown. Soon they became inseparable.
"I knew he was a wonderful guy who was genuinely concerned about his clients and his work, but I had never dated a friend before," Torrealba says. "When he asked me out, it opened my eyes.”
Two years and four months later, Horenstein popped the question. They’re getting married February 2017.
In the meantime the couple has lived together for 16 months in a Brickell area apartment. They spend most of their work hours together, too. They believe the closeness has helped burnish their new love.
He says: "She’s incredibly bright and quick-witted and positive. She’s so much fun to be around."
She says: "He has what people call good moral fiber."

Cool story!   This one from the 6th Circuit, not so much:

Rocky Houston appeals his conviction of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At trial, the primary evidence against Houston was video footage of his possessing firearms at his and his brother’s rural Tennessee farm. The footage was recorded over the course of ten weeks by a camera installed on top of a public utility pole approximately 200 yards away. Although this ten-week surveillance was conducted without a warrant, the use of the pole camera did not violate Houston’s reasonable expectations of privacy because the camera recorded the same view of the farm as that enjoyed by passersby on public roads.

Oh boy.  Big brother is watching!

Read more here: http://www.miamiherald.com/living/health-fitness/article59222768.html#storylink=cpy

Legal debates...

First: "What's harder, for a man to do 30 pushups or a woman to do 14?"  That's from Althouse discussing the 4th Circuit case of Bauer v. Lynch, which addresses the requirements for the FBI:

"Whether physical fitness standards discriminate based on sex, therefore, depends on whether they require men and women to demonstrate different levels of fitness.... [T]he numbers of push-ups men and women must complete are not the same, but... the fundamental issue [is] whether those normalized requirements treat men in a different manner than women.... [A]n employer does not contravene Title VII when it utilizes physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each."

Second, is Cruz eligible to be President?  From Harvard Law Today:

“Cruz claims that the narrow, historical meaning of the Constitution is literal, except when it comes to the ‘natural born citizen’ clause,” said Tribe, who taught Cruz when he was a student at HLS in 1994.
The crux of the matter is that the Constitution, in Article II, Section 2, Clause 5, states that “no person except a natural born citizen” can be president.
Under English common law, upon which U.S. law was based, a “natural born citizen” would be someone born on American soil. For Tribe, according to this definition, Cruz does not qualify. He compared Cruz to Alexander Hamilton, a founding father who was born in St. Croix, Virgin Islands, but qualified as a U.S. citizen at the time of the adoption of the Constitution, and former presidential candidate John McCain, who was born in the Panama Canal Zone when it was under U.S. control.
“Unlike Cruz, McCain was born in U.S. territory,” said Tribe. “And unlike Cruz, McCain was born to two U.S. citizens, parents who had been deployed to the Panama Canal Zone by the military to serve the country.”
But for Jack Balkin ’81, a constitutional law professor at Yale University, Cruz is a “natural born citizen” because under U.S. immigration law in 1970, he automatically became an American because his mother was one. The law grants birthright citizenship to a child born overseas if one parent is a U.S. citizen.

I think question 1 might get more commenters' blood boiling...

Monday morning update

So like the rest of you, I watched the Super Bowl and the commercials.  zzzzzzzzzzzzz

What a snoozer.  Seemed more like a Thursday night Raven/Titan game than the Super Bowl.

Politics this weekend was far more entertaining.

Of course, you had SNL with Larry David/Bernie Sanders:


But the better comedy was at the GOP debate:



In terms of the actual debate, I thought Marco got crushed in this exchange: