Justice Gorsuch dissents from cert denial

 It's the well-known Donziger prosecution, which involved a lawyer being held in contempt.  Justice Kavanaugh joined the dissent, which explains:

When Mr. Donziger failed to comply fully with the court’s orders, it held him in criminal contempt and referred the matter to the U. S. Attorney’s Office for prosecution.  See 38 F. 4th 290, 295 (CA2 2022).  After some deliberation, however, the U.S. Attorney “‘respectfully declined’” to take up the case. Ibid. (alteration omitted).

Apparently displeased with this decision, the district court responded by setting up and staffing its own prosecutor’s office. Ibid. In the bench trial that followed, that office secured a conviction and the court sentenced Mr. Donziger to six months in prison. Ibid.  Throughout these proceedings and on appeal, Mr. Donziger objected.  He argued that the district court had no lawful authority to override the Executive Branch’s nonprosecution decision and that our Constitution’s separation of powers exists in no small measure to keep courts from becoming partisans in the cases before them.  Despite his arguments, the Second Circuit affirmed Mr. Donziger’s conviction. Id., at 306. Judge Menashi dissented. Id., at 306–315.

***

However much the district court may have thought Mr. Donziger warranted punishment, the prosecution in this case broke a basic constitutional promise essential to our liberty.  In this country, judges have no more power to initiate a prosecution of those who come before them than prosecutors have to sit in judgment of those they charge.  In the name of the “United States,” two different groups of prosecutors have asked us to turn a blind eye to this promise. Respectfully, I would not.  With this Court’s failure to intervene today, I can only hope that future courts weighing whether to appoint their own prosecutors will consider carefully Judge Menashi’s dissenting opinion in this case, the continuing vitality of Young, and the limits of its reasoning.  Our Constitution does not tolerate what happened here.

News & Notes

1. Thank you Michael Caruso for a great post on Friday.

2.  Hope everyone enjoyed their spring break.  Back to the crazy traffic.

3. Go CANES.

4. What's going on with the Israel Supreme Court.  CNN explains here:

For months, hundreds of thousands of Israelis have been taking to the streets across the country to protest far-reaching changes to Israel’s legal system some say threaten the country’s democratic foundations.

At its core, the judicial overhaul would give the Israeli parliament, the Knesset, and therefore the parties in power, more control over Israel’s judiciary.

From how judges are selected, to what laws the Supreme Court can rule on, to even giving parliament power to overturn Supreme Court decisions, the changes would be the most significant shakeups to Israel’s judiciary since its founding in 1948.

The proposed reforms do not come out of nowhere.

Figures from across the political spectrum have in the past called for changes to Israel’s judiciary.

Israel has no written constitution, only a set of quasi-constitutional basic laws, making the Supreme Court even more powerful. But Israel also has no check on the power of the Knesset other than the Supreme Court.

5.  Will Trump be indicted this week?  Should he be?  Rumpole discusses bail over at his blog.  

Triple Crown Winner

By Michael Caruso

As David noted in a prior post, Judge Williams and I had the privilege of speaking at Magistrate Judge Augustin-Birch's investiture last week. In addition to telling the audience what a wonderful person and lawyer the Judge is, we both noted the "firsts" she's accomplished–the first judge of Haitian-American descent on our court and in the 11th Circuit and the first career public defender on our bench.

Because this is Women's History Month, I wanted to note some (but not all) other relevant judge "firsts."*

Chief Judge Altonaga–the first Cuban American woman federal judge in our country and the first woman Chief Judge in our district.

Judge Barkett–the first woman on the Florida Supreme Court.

Judge Cooke–the first African American woman in our district.  

Judge Lagoa–the first Cuban American woman on the 11th Circuit, Florida Supreme Court, and Third DCA.

Judge Maynard–the first African American woman Magistrate Judge in our district. 

Judge Nesbitt–the first woman in our district.

Special mention to Judge Seitz–the first woman Florida Bar President.  

But the Triple Crown belongs to Judge Susan Black of the 11th Circuit Court of Appeals–Judge Black was the first woman to be a county court, circuit court, and federal judge in Florida. (Judge Black was also the first woman ASA in our state). Quite the accomplishments! 

If you're interested in reading more about women "trailblazers," I highly recommend this ABA oral history series– https://www.americanbar.org/groups/senior_lawyers/women_trailblazers_project_listing 

At this site, you'll find fascinating interviews with Judges Barkett and Kravitch, Justice Quince, Janet Reno, and many others. 

*I gathered this information from public sources; please let me know if incorrect. 

 

Magistrate judge in Denver has never heard of Brady v. Maryland

I hate gotcha moments but wow, you gotta watch district court nominate (and current magistrate judge) Kato Crews bomb this question about Brady v. Maryland. 

There are so few trials that *judges* do not even know what Brady is. This is a magistrate judge, who hears discovery disputes among the parties… and who is also supposed to order disclosure of Brady material at arraignment per Rule 5.

And he’s been nominated to the district bench. Ouch. 

Here’s the story about the nominee, Kato Crews.

And here’s a video of the exchange  

Penny Birch's investiture

 A big congrats to Magistrate Judge Birch, who had her formal investiture last week.  Judge Kathy Williams, FPD Michael Caruso, and her family members spoke.  Sadly, one of her mentors Judge Brannon was not there to see it. But his wife, Dr. Pamela Brannon, gave one of Judge Brannon's robes to Judge Birch in a touching moment.  

Judge Brannon's portrait hanging

Judge Brannon’s portrait was hung in the West Palm Beach federal courthouse last week.  It was an informal setting but according to several sources, there was an incredible turnout.  Dr. Pamela Brannon, his surviving spouse, flew in for the occasion.  Judge Matthewman gave remarks focused on how much Judge Brannon loved his job and how fortunate everyone was to have known him.

His portrait was created by the Court’s portrait artist, Cyd Wicker, and he was involved in the process before he passed.  It was important to Judge Brannon that his portrait be hung in the West Palm Beach courthouse where he devoted many years of service as an Assistant Federal Public Defender and Magistrate Judge.  Judge Brannon  chose to include his U.S. Coast Guard pin in his portrait as a tribute to his USCG days, which he loved.  In fact, his final resting place will be the USCG Academy in New London, CT.   His wife was wearing the pin at the ceremony. 

It's all Kyle Duncan talk

 Everyone in legal circles is discussing the Stanford Law/Federalist Society controversy with Judge Kyle Duncan. 

Here's the entire audio of the event, courtesy of David Lat.

Here's George Will, calling the protestors brats:

The noun “parent” has become a verb as many people embrace the belief that perfectibility can be approximated if parents are sufficiently diligent about child-rearing. So, “helicopter parents” hover over their offspring to spare them abrasive encounters with the world. And “participation trophies” are given to everyone on the soccer team, lest the excellence of a few dent others’ self-esteem — the fuel that supposedly propels upward social mobility.

Larded with unstinting parental praise and garlanded with unearned laurels, these cosseted children arrive at college thinking highly of themselves and expecting others to ratify their complacent self-assessment. Surely it was as undergraduates that Stanford’s law school silencers became what they are: expensively credentialed but negligibly educated brats.

Stanford’s president and the law school’s dean jointly say they are sorry about the unpleasantness. Not, however, so sorry, as of this writing, that they have fired Steinbach — although they say she refused to do her job: “Staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.” The depth of that commitment can be gauged by this tepid rebuke, in bureaucracy-speak, of Steinbach for being improperly “aligned.” As this is written, many of Stanford’s future lawyers are demanding that the dean apologize for apologizing.

Stanford has not expelled any of the imperfectly “aligned” disruptors. The school might be improved by the departure of the student whose idea of intellect in the service of social justice was to shout sexual boastings and scabrous insults. Readers can find in the Washington Free Beacon the insulter’s unintended proof that there is indecent exposure of the mind as well as the body.

And finally, Elie Mystal saying the protestors aren't disrespectul; instead they are American: 

Judges are not used to being treated like politicians. They’re used to being treated like they’re above the political fray, like they’re scientists musing about whether the laws allow for covalent or ionic bonds, as opposed to jackboots determining who gets to have a family. Conservative judges, like Duncan, have chosen to insert their unreconstructed thoughts into our national political debates. Duncan purports to tell us where we can go to the bathroom, what pronouns we must use, and how many minutes after a rape people have before their bodies become incubators in service of the state. And conservative judges like Duncan have used their power to do everything from overruling health experts on virus response to telling us which innocent people still deserve to die. But the rest of us aren’t allowed to scream and shout and stomp our feet when these unelected, unaccountable rulers poke their heads out long enough to indoctrinate the next generation of fascist sympathizers?

Please. Old-school monarchs didn’t enjoy the level of protection from public abuse Federalist Society judges claim to be entitled to. Duncan is lucky nobody at Stanford brought any unneeded vegetables.

But conservative judges want to have their cake and eat it too. They want all the political power they have to remake society in the image of a fragile white man’s dream, but none of the political blowback that comes from trying to force their nightmares upon others. They want to speak only to the antebellum remnant that agrees with them and expect those who will lose their rights from conservative victories to sit quietly.

Stanford law students deserve a lot of credit for seeing through the judicial farce and registering their discontent in the traditional American way.

Guest post by the Presidents of the the Palm Beach, Broward, and South Florida Chapters of the FBA

Guest post by the Presidents of the the Palm Beach, Broward, and South Florida Chapters of the FBA

A message to rising 2L law students at UM, FIU, Nova, and St. Thomas (and for attorneys please read to the end): 

As you near the end of your 1L year, many of you are inevitably still evaluating options for summer. Law firm jobs, government jobs, vacations, and more.

You’ve hopefully also recognized and considered the value of a judicial internship.

Enter the Judicial Intern Academy, or “JIA,” a partnership between US District Judge Beth Bloom and the South Florida, Broward, and Palm Beach Chapters of the FBA. The JIA is a summer internship program that provides learning opportunities for rising 2L students unable to devote the summer to a full-time, 40-hour per week judicial internship. The student commits to 20 hours each week. Each intern is paired with a former federal judicial law clerk who has agreed to serve as that intern’s advisor during the internship. Law Clerk Advisors (LCAs) volunteer their time and expertise to assist students in refining their oral advocacy, research, analytical, and writing skills. The LCAs are intended to serve as a resource to the intern, similar to the experience enjoyed by other full-time summer judicial interns who work in chambers with the judge’s law clerks.

This past summer, the JIA implemented a pilot program in the SDFL with two local law schools. The 2022 inaugural class consisted of 19 students selected from the University of Miami School of Law and Florida International University College of Law. Each student was paired with a former federal judicial law clerk. The interns received a case-specific writing and oral advocacy assignment. They researched and drafted a bench memorandum and then argued the issues during a mock hearing in the courtroom. The South Florida, Broward and Palm Beach FBA Chapters have formally adopted the Academy and this summer the JIA is expanding to each of the four ABA accredited law schools – UM, FIU, Nova, and St. Thomas.

Internships provide an invaluable opportunity for growth, yet are highly competitive and selective. As a result, well-qualified and motivated students are often rejected. For other students, a full-time, unpaid summer internship is not feasible due to financial or personal obligations. The Judicial Intern Academy was developed to give more law students this opportunity to learn.

The deadline to apply to the JIA is March 31, and applications should be submitted to JudicialInternAcademySDFL@gmail.com. Final decisions will be made by April 10, and the program runs for 8 weeks from June 5 through July 28. Please feel free to contact Yaniv Adar at Yaniv@MarkMigdal.com with any questions.

FOR ATTORNEYS** If you are a former federal judicial law clerk practicing in Palm Beach, Broward, or Miami and are interested in serving as an LCA, let us know! You can email Trevor Jones at trevor.jones@usdoj.gov to volunteer. Finally, the JIA is always looking for input and suggestions on additional student learning opportunities during the program. Please email Yaniv Adar at the address above with any ideas. Thank you.