Trump bashes 9th Circuit for reversal rate...

...but you know which Circuit is reversed more often?

That's right, the 11th Circuit. (82% for the 11th vs. 80% for the 9th over the past 5 Terms).

It's all silly, of course. The reversal rate is pretty consistent across the circuits as the Supreme Court generally takes cases to reverse, not to affirm.

And the 9th Circuit is by far the largest Circuit with the most cases, so on a pure number-of-cases basis, it's going to lead the pack.

Justice Roberts joined the fray with this retort about an independent judiciary.

The Washington Post then roasted Trump explaining that judges on both sides of the aisle have been ruling against him, again and again:

[Roberts] could have noted that the number of rulings against his administration’s actions now stands somewhere in the range of about 40 to 50, according to a rough estimate by The Washington Post. Norman Siegel, writing at Law.com in January, counted 37 “major” losses, and that was in January, before numerous other rulings that thwarted Trump administration decisions.

And he could have observed that all of this is a bit of a surprise. All presidents lose cases. But a losing streak of this magnitude for a president is a new phenomenon.

Despite the endless decades of rhetoric about “judicial activism,” judges at the district court level are generally a timid lot when it comes to confronting presidents. Historically, they are inclined to do what former federal judge Nancy Gertner calls “duck, avoid and evade.”

“Now,” she wrote in the April issue of NYU Law Review, “I am not so certain. . . . Perhaps ‘judging in a time of Trump’ ” is different, she wrote. “It is one thing to ‘duck, avoid and evade’ when you believe that official actors are acting more or less within constitutional bounds. It is another to do so when you are concerned about real abuse of power.”

***
It was U.S. District Court Judge Dana M. Sabraw, for example, a California jurist appointed by President George W. Bush, who ripped the administration repeatedly for its family separation debacle.

And how could Trump forget that it was his own appointee, Timothy J. Kelly of the U.S. District Court for the District of Columbia, who slapped down the effort to ban CNN’s Jim Acosta from the White House.

***
One of the toughest dressings-down came from a decision blocking Trump’s “sanctuary cities” crackdown written by Judge Ilana Rovner, appointed by President George H.W. Bush to the U.S. Court of Appeals for the 7th Circuit, based in Chicago. In a decision joined by a Gerald Ford appointee and a Reagan appointee upholding a lower-court ruling by a Reagan appointee, she lit into the Trump administration for assuming powers to withhold money not granted to it by Congress to punish states and cities that didn’t go along with efforts to round up those in the country illegally.

Her message to Trump and then-Attorney General Jeff Sessions, translated, was basically, who do you think you are?

Our role in this case is not to assess the optimal immigration policies for our country. . . . The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescense of elected legislators, the check against tyranny is forsaken.

Gorsuch and Sotomayor channel Justice Scalia

From ScotusBlog:

But one criminal case on which they did act today, involving the Sixth Amendment right to confront the prosecution’s witnesses in a criminal trial, drew a dissent from the unlikely pairing of Justices Neil Gorsuch and Sonia Sotomayor.

Sotomayor joined Gorsuch’s dissent from the denial of review in Stuart v. Alabama. The defendant in the case, Vanessa Stuart (who has since changed her name to Vanessa American Horse), was charged with driving under the influence and criminally negligent homicide after she rear-ended Tiffany Howell’s car, causing Howell to strike a tree and die.

At Stuart’s trial, prosecutors introduced lab reports as evidence of Stuart’s blood alcohol level. But they did not ask the scientist who signed the lab report to testify. And that omission, Stuart contended, was inconsistent with Bullcoming v. New Mexico, in which the Supreme Court held that introducing a lab report at trial without testimony from the person who prepared the report violates the Sixth Amendment’s confrontation clause, which gives a defendant the right “to be confronted with the witnesses against him.”

The justices turned down Stuart today, over a four-page dissent from Gorsuch, who began by noting that because “cross-examination may be the greatest legal engine ever invented for the discovery of truth, the Constitution promises every person accused of a crime the right to confront his accusers.” “That promise,” Gorsuch continued, “was broken here.”

Gorsuch went on to explain that, although the state court’s errors in Stuart’s case were in his view obvious, they were also understandable, because the Supreme Court’s opinions on the confrontation clause – and in particular a 2012 case in which no rule was able to garner a majority of the votes – “have sown confusion.” He (and Sotomayor) would have granted review to clarify some of the issues surrounding cases like Stuart’s.

In other news, Willie Falcon was deported... but not to Cuba.  He was sent to the DR.  From the Miami Herald:

One of South Florida’s most infamous cocaine cowboys — Willie Falcon — has been deported to the Dominican Republic after his bid to stay in the United States failed following his 20-year prison sentence on a drug-related money-laundering conviction.

Falcon, 62, was deported earlier this month because he was a convicted felon without U.S. citizenship. He had been held in Louisiana since June 2017 by immigration authorities who at first sought to deport him to his native Cuba.

But Falcon, who recently lost his final federal court appeal to block his deportation, won’t be sent to Cuba as he and his Miami family members initially feared, according to federal officials. The Dominican Republic government agreed to accept Falcon as a resident.

Monday news and notes

1.  Donald Trump made a joke about Justice Scalia’s wife being busy. Via USA Today:

Amid introducing the awardees of the nation's highest civilian honor, some online noticed the president seemed to include a joke about Scalia's virility.

Trump welcomed Scalia's wife, Maureen, and their nine children who attended the White House ceremony. After reading the names of each of the nine children, Trump seemed to slip in a joke about the couple's sex life.

"You were very busy. Wow," the president said, causing those in the room to chuckle. "Wow. I always knew I liked him."

2.  Stephen Colbert interviews Justice Sotomayor. Here it is on YouTube.

3.  Trump’s nominee to fill Justice Kavanaugh’s spot on the D.C. Circuit is a defender of dwarf tossing.  From MotherJones:  “Add to that list Neomi Rao, Trump’s nominee to replace Brett Kavanaugh on the powerful DC Circuit, who has written at least two law review articles and a blog post in which she defended dwarf-tossing.”

4.   The Florida Supreme Court says that judges and lawyers can be Facebook friends.  Here’s the Law.com article.

D’oh! Cut and paste job goes bad... charges against Assange revealed in unrelated court filing.

The Washington Post has the story, which is every lawyer’s nightmare when they hit the file button on cm/ecf:

WikiLeaks founder Julian Assange has been charged under seal, prosecutors inadvertently revealed in a recently unsealed court filing — a development that could significantly advance the probe into Russian interference in the 2016 election and have major implications for those who publish government secrets.
The disclosure came in a filing in a case unrelated to Assange. Assistant U.S. Attorney Kellen S. Dwyer, urging a judge to keep the matter sealed, wrote that “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.” Later, Dwyer wrote the charges would “need to remain sealed until Assange is arrested.”
Dwyer is also assigned to the WikiLeaks case. People familiar with the matter said what Dwyer was disclosing was true, but unintentional.

Joshua Stueve, a spokesman for the U.S. attorney’s office in the Eastern District of Virginia, said, “The court filing was made in error. That was not the intended name for this filing.”

Miami AUSA opens in El Chapo case

It’s AUSA Adam Fels for the prosecution.  He opened this way: “Money, drugs, murder and a vast global narcotics trafficking organization — that is what this case is about, and that is what the evidence in this case will prove.”  More from the NY Post:

Opening statements finally began Tuesday in the trial for Joaquin “El Chapo” Guzman — with prosecutors describing some of the notorious accused drug lord’s most heinous acts for jurors, along with his weapons of choice.

“Some of his favorites include a diamond-encrusted handgun with his initials on it and a gold-plated AK-47,” said federal prosecutor Adam Fels.

He recounted how Guzman allegedly ordered hits on his own loved ones and used a small private army — consisting of hundreds of men “armed with assault rifles” — to take out his rivals.

For the defense:

Guzman’s defense team, meanwhile, claimed during its opening statements that prosecutors were trying to use him as a “scapegoat.”

“There’s another side to this story, an uglier side,” said attorney Jeffrey Lichtman. “This is a case that will require you to throw out much of what you were taught.”

According to Lichtman, the real criminal mastermind is Ismael “El Mayo” Zambada — current leader of the infamous Sinaloa Cartel. The lawyer described the 70-year-old former poppy-field worker as “the biggest drug trafficker in Mexico.”