WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Tuesday, December 09, 2008

CARS AND THE CONSTITUTION

UPDATE!!! The Captain has reliably informed us that Miami Judges Kevin Emas and Gil Freeman have both made the cut and their names are among 6 being sent to Governor Crist for consideration as Florida's next Supreme Court Justice. Congrats to both. 

CARS AND THE CONSTITUTION:
If we ever lose the bill of rights completely, it will be in a case involving a car. I  don't know why the Supreme Court has it in for people who own and drive cars, but ever since
Carroll v. US in 1925, when the court held that people in cars have less expectation of privacy, the court has systematically stripped the protections of the Bill of Rights when it comes to people in motor vehicles. 

Today (Tuesday) the Court hears argument in Arizona v. Johnson,  (SCOTUS WIKI Link) in which the question presented is whether an officer who doesn't like the way a car looks can arrest the occupants and send them directly to prison without benefit of trial?  Not really. But almost. The question in the case is whether an officer who admittedly does not have probable cause or even reasonable suspicion can conduct a  " Terry pat-down search" of a vehicle passenger when the officer believes that the officer’s safety or that of the public may be at risk? 

Put another way- does an officer's unfounded suspicions or fears allow him or her to perform a Terry Search on someone who has done nothing wrong and is just a passenger in a car? 

Put another way- just how far can irrational fear and unfounded suspicion go in eroding the Bill of Rights? 

Put another way- Just what can't the police do to someone who has the temerity to ride in a car? 

We'll be following the oral argument.

Hottest Supreme Court Rumor (what? You thought we only knew about the REGJB?) 
Justice David Soutter is so "unsuited" for life in Washington, and so unhappy about working on the court that the rumor amongst the regulars at the Old Ebbitt Grill  is that Souter  can barely  wait until Obama becomes President so he can retire and return to his Cabin in New Hampshire.  Several years ago Souter was mugged and beaten up pretty badly while jogging in DC.  He is the first out of town when the court is not in session, and he has made several statements in the past that he would retire as soon as a democrat was elected president. 

Who's first out: Souter or 87 year old Justice Stevens? 

Who's brushing off their resume for an appointment to the S Ct? Anyone in South Florida? Lots of very interesting and brilliant Judges on the 7th Circuit (Illinois) including Judges Posner and Eastbrook. As  a former law professor in Chicago, Obama must have more than a passing familiarity with Posner and Eastbrook. 

 Posner is a prolific author (40+ books)  with very persuasive views on the economic  theory of law.  Posner was appointed by President Reagan and has been called the "greatest living jurist in the United States." Posner graduated first in his class from "Harvahd Law."  He was president of the law review and clerked for Brennan on the Supreme court in 1962-63.  He is known to be  a supporter of Roe.  He is 68 years old and is a renowned Blogger!!!! Click here.  

Posner's November 30, 2008 post on the future of conservatism is a must read. 


Hottest rumor in the REGJB? Judge Jerald Bagley wants to add the title "Chief" to "Judge".  With Judge Ivan Fernandez also seeking the top spot, we would be well served if either of these two popular and qualified jurists took over for Judge Farina. 

See You In Court. 

It was 71 degrees at 6:00 AM.  A veritable heat wave for Florida today.  



28 comments:

Anonymous said...

Why would Obama appoint another conservative to this court no matter how qualified? Business doesn't need any more help from this Court, people do.

Anonymous said...

I think that Judge Bagley would be a most excellent and fair Chief Judge. I have known this classy jurist for years and highly recommend that my colleagues vote for him. He and I were part of the 500 African American Role Model program started by Sen. Wilson to mentor at-risk youth. We both started as judges at about the same time and I am proud to hear the wonderful stories as to how he conducts his courtroom. Good luck my friend...

CAPTAIN said...

THE CAPTAIN REPORTS:

Supreme Court, how about Florida's:

It appears that local favorite Judge Emas has a second shot at making it to Florida's high court with today's announcement that the JNC will send his name and others to Gov. Crist for consideration. Judge Gill Freeman joins Emas from the 11th and makes it onto the short list:

Judge Kevin Emas, 50, Miami, Eleventh Judicial Circuit

Judge Gill Freeman, 59, Miami, Eleventh Judicial Circuit

Judge Jorge Labarga, 55, West Palm Beach, Fifteenth Judicial Circuit

Judge C. Alan Lawson, 47, Fifth District Court of Appeal

Judge Waddell A. Wallace, III, 55, Jacksonville, Fourth Judicial Circuit

Captain Out ....

Anonymous said...

Judge Emas would make a fine Florida Supreme Cout justice. His knowledge of the law is superior.

I have a one reservation about Judge Bagley as Chief Judge. He is fair, albeit tough on both sides, and is a man of high integrity. Judge Bagley is known as "no nonsense," and he would be certain to run a tight ship as Chief Judge. However, he is not the warmest person personality-wise. He is not mean or vindictive, and definitely not egotistical, just cold and oftentimes distant. Few would dispute that he is a well-qualified jurist, but he doesn't have the openness of Judge Blake, for instance.

And rumor has it that Judge Peter Adrien will be seeking a slot on the United States Supreme Court.......

PS--Just to show how Supreme Court picks go, Justice Souter is currently regarded, with the exception of Justice Ginsburg and sometimes Justice Stevens, as the most liberal justice on the United States Supreme Court. When appointed, he was hailed as an ultraconservative judge in the Scalia/Thomas/Alito mold.

Anonymous said...

7:49AM

Amen!

Rumpole said...

8:36- I would characterize Judge Bagley as a private man. He doesn't wear his heart on his sleeve. But that doesn't mean he doesn't have a heart. Actually, I have always believed there was too much chummyness between Judges and Lawyers. When a lawyer becomes a judge I think he or she needs to be more reserved so as to avoid the appearance of impropriety. Judge Bagely would be a great pick.

I agree in theory what you said about Souter- he was the first President Bush's pick- and John Sununu who was Bush's chief of staff at the time was from New Hampshire and Souter was on the NH Supreme Court. The First President Bush, is the classical definition of a NE liberal Republican. Despite his pick of Thomas, he favored moderate to liberal republican judges. Plus- Alito was not on the court when Souter was picked. Scalia was and Thomas I think was Bush's first choice. President Bush was not in favor of over ruling Roe and Souter was a very calculated pick. The Democrats were worried he was a "stealth candidate" as he was called, but in fact Bush sneaked him by the Republicans.

South Florida Lawyers said...

I agree with Rump -- Bagley would be a fine pick.

Can't agree on Posner -- smart guy, sometimes too smart for his own good. His overhealthy sense of himself would make him even more activist and insufferable than he already is on the 7th.

Anonymous said...

Both of the choices for Chief Judge, while very different, are excellent judges.

Anonymous said...

No one would be a better Chief Judge than Jerald Bagley. He is fair, smart, and a hard worker. I agree with Rumpole that Bagley is an excellent judge precisely because he doesn't rub elbows with attorneys. It is easier to rule impartially when you don't suck up to the lawyers who appear before you. He also has sought experience beyond the criminal bench, and he has life experience prior to becoming an attorney/judge which make him a great candidate. (How many other judges had to make ends meet by driving a cab?) Nothing against Fernandez (also a very good judge) but Bagley is clearly the better candidate.

Anonymous said...

Posner is an asshole. Watch an interview he gives sometime. You want a good pick, put Kaczinsky (misspelled) from the 9th on there and we will get some real opinions and dissents.

Anonymous said...

Federal authorities arrested Illinois Gov. Rod Blagojevich Tuesday on charges that he brazenly conspired to sell or trade the U.S. Senate seat left vacant by President-elect Barack Obama to the highest bidder.

Anonymous said...

Kacyzinski is very libertarian, hard-core pro market, anti drug war, etc. Don't think this what Obama has in mind!

Anonymous said...

Old Ebbit's is the place to be in DC. If you are ever there on the weekend before Thanksgiving they have their annual Oyster Riot which for you seafood lovers is a truly incredible feast. For $80 you get to sample all the oysters
(over 20 kinds) and all the wines you like.

ScottAfrica

Anonymous said...

Sorry Emas but this one goes to either a female, a Black or a Latino for sure. With all the bad publicity that Crist has gotten for his earlier 2 white male appointments, there is simply no way he will go for number 3.

ScottAfrica

Anonymous said...

Rumpole,

With all due respect, you conveniently failed to mention in your (albeit funny) description of the issue in Johnson, that the defendant: (1) was wearing all blue clothing (consistent with a gang in the area of the arrest); (2) had, in plain view, a police scanner often used to avoid police detection; and (3) had admitted to the officer, pre-search, that he had been to prison for burglary. Your description of the issue, and your position on the rule, would require the officer to wait to search the passenger until he pulled the firearm on her. Is that "reasonable" under the Fourth Amendment?

Your description of GHWB's judicial picks is a bit off. Souter got on the Court because Sununu (GHWB's chief of staff) owed Souter a favor and pulled for him. Plain and simple. To claim that 41's judicial picks ran from liberal to moderate is just inaccurate, given that he nominated: (1) Thomas; (2) Terrence Boyle; (3) Roberts (to the DC Cir. Ct. App.); (4) Michael Luttig; (5) Alito (to the 3rd Cir.); and (6) Edith Clemment.

Souter's moderate to liberal outcome was a surprise to all except Sen. Warren Rudman. Sununu sold him to Bush saying that he was a "solid conservative of the likes of Bill Rehnquist." GHWB has said that Souter's appointment was one of his biggest mistakes as president.

Anonymous said...

Did we forget about Joel Brown as a candidate for Chief Judge.We now have three great choices.Each of the judges have their own individaulity and experiences.Bagley has only one problem as I and others see it:he is to introverted and not necessarily personable enough for the psoition of Chief Judge.

Anonymous said...

Judge Brown has all of the above; he has a warm heart, a decisive attitude, a fair temperament, elicits respect from attorneys and judges alike and sound judgment. It is a shame this blog's readers have counted him out.

fake former judge colby said...

7:49 is FORMER JUDGE ALAN POSTMAN.

Rumpole said...

2:12- Your points are valid. However, GHWB did put Souter on the Bench and I think he sneaked him by because he knew what he was doing.

Your analysis of the Arizona case is correct but so is mine. The Supreme Court looks for bright line rules to help police officers know what they can and can't do and to help trial judges sort it out. I seriously doubt they will issue a decision that says a police officer can search a passenger without cause when near a high crime area, so long as the passenger is wearing possible gang colors and is carrying a police scanner.

Rumpole said...

Judge Sigler- I'm sorry but for some reason your comment about my obsession with temperature did not post.

I do get obsessed with mundane aspects of life like time and temperature. I'm OCD and its debilitating. You know in the older courtrooms on the 4th floor, those boxes behind the Judge? You know how many times over the years I have counted them and then divided them by the number of letters in a judge's name or some other arcane number? Too many times to count. I just get stuck on an obsession and what happens is once I start recording the temperature at a certain time, I'll get stuck doing it for months or years at a time. They have medicine for this, but then it takes away my creative muse.

Thanks for reading.

Anonymous said...

Rumpy: Re: your OCD and obsession with time and temperature, you continue to crack me up. Like I said in a previous post, this blog is very funny at times. Don't ever stifle your creative muse. "Mom"

PS: when did the blog become a dating service for lonely south beach lawyers who don't snort coke?

Anonymous said...

3:09 PM, 8:36 AM here. Your description of Judge Bagley is one I agree with, and stated far better than mine. He is a fine judge who happens to be less than personable.

Rumpole, I must respectfully disagree regardng Justice Souter. As 2:12 PM said, look at GHWB's other picks. He had the opportunity to replace Justices William Brennan and Thurgood Marshall, the last two vestiges of the liberal wing of the Warren Court. One of his SCOTUS picks was Thomas, who is now in his ultraconservative cabal with Scalia and Alito (and Rehnquist before Alito). He hoped that Souter would turn into another Rehnquist, albeit more mild-mannered. I remember his comments when Souter was picked that Souter was a conservative judge by New Hampshire standards, and New Hampshire judges tended to be conservatives.

Souter is hardly the first Supreme Court nominee to "evolve" on the bench. Earl Warren and William Brennan, two of the most liberal justices in history, were appointed by Eisenhower. Harry Blackmun, another liberal, was appointed by Nixon. Byron White, who was moderate-conservative, was JFK's sole pick for the Court. And Sandra Day O'Connor, while fairly conservative, no doubt disapppointed some Republicans who hoped for Reagan to pick another Rehnquist type. My gut feeling tells me that Chief Justice Roberts will turn into an Anthony Kennedy-type conservative--conservative in most areas, but not in the Rehnquist-Alito mold that some had hoped.

Anonymous said...

Rumpole -- first you forget that Joel Brown did, in fact, spend time at the REGJB and now you forget to mention him altogether as one of the candidates for Chief Judge? Come on...

Anonymous said...

RUMP- I'm calling the Shum at 4:40 today. It's slow and I'm going to squeeze in a work out before my date tonight with this MILF. She's 45, ten years older than me, but a body that won't quit. Long blonde hair, and loves to wear tight jeans and high heels. she drives me crazy.

Anonymous said...

Rumpole aka those who forget Judge Brown is seeking Chief Judge position, go BLEEP yourself!

Anonymous said...

The most qualfied to be the "chief" is Stan Blake. He has the experience, personality and experience to succeed in this tough job in stroking and listening to the grips pf the prima donnas he has to deal with. Although he didnt drive a cab, he did sell concessions at the orange bowl in the 70s as a "zum-zum " man. He has been in private practice an experience that Fernandez and Bagly lack. But he will not run against fellow gator, Judge Brown. So, Judge Brown is the best pic out of those running.

Anonymous said...

Rump...I count shapes and colors and always need to end the count at an even number. It symbolizes structure, formality, consistency. Then I will divide that even number into an odd number and practice fractions. I also practice math on license plates and assimilate the number outcome with vehicle make and models. The higher the number the larger the vehicle and the larger the carbon footprint!

Anonymous said...

Emas is a prick but, a smart guy.

He will not get it. They will have no choice but, pick a woman or minority.