Check Out This Cool WH Infographic!

How boring are judicial confirmations to the general public?

It's amazing to me that Democrats continue to be stuck with horrible branding on issues of tremendous importance, like "the mandate," "entitlements," or "Harry Reid."

Still, they keep trying.

In yet another effort to spiff up the exciting "judicial confirmation crisis" the WH has released the above nearly impossible to read infographic (actually, you need to click on the image or click here to expand), which sets forth in neat flow charts how disastrous the current situation is with our federal judiciary.

Here's some of the rosy news:

Unfortunately, the delays these nominees are encountering on Capitol Hill are equally unprecedented: earlier this month, the Senate left for its August recess without considering 20 eminently qualified candidates, 16 of whom had passed through the bipartisan Senate Judiciary Committee completely unopposed, a development the Washington Post called “not only frustrating but also destructive” in an editorial published yesterday.

The victims of these delays, of course, are the American citizens who are being denied the fair and timely judicial proceedings they deserve because of the chronic shortage of federal judges on the bench.  Stephen Zack, president of the American Bar Association, told Senate leaders in a recent letter that the abundance of vacant federal judgeships “create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions.”

I know I know -- your anecdotes about how slow things seem at the federal courthouse and one time you saw a judge leave work early trump all these stupid "statistics" and "data" so problem solved.

But question -- is there any reason to delay Judge Jordan's confirmation to the 11th?  Would it be good if he didn't make it?

If the answer is no maybe we should try to help accelerate this process.

My Baby Steve Zack, He Wrote Me A Letter!

Not one to simply let Chief Judge Moreno hog all the spotlight, ABA Prez Steve Zack (captured mid-phone above) has jumped in with his own letter about all those darn federal judicial vacancies, and why can't the Senate just get along pre-recess and confirm a few of these folks so that whole system of laws thing doesn't break down, don'tcha know:

Thirty-eight of the present vacancies have existed for so long and created such untenable workloads for the remaining judges on the courts that the seats have been declared judicial emergencies by the Administrative Office of the U.S. Courts. As lawyers who practice in federal courts across this nation, ABA members know firsthand that long-standing vacancies on courts with staggering caseloads impede access to the courts and create strains that will of the courts to vindicate constitutional rights or render fair and timely decisions. In Arizona, for example, the Speedy Trial Act has been temporarily waived, and criminal defendants wait up to 6 months for a trial, while businesses and individuals wait up to 2 years before their cases are heard.

So far so good (I mean bad).

But then Steve continues:

We realize that the aging of our federal judiciary has contributed to the growing vacancy crisis.

 Hey now!

Being the silver-tongued devil that he is, Steve politely refers to the nationwide decaying judge issue as "attrition":

According to Department of Justice estimates, 60 new vacancies will be created through attrition each year for the next decade. Obviously, progress toward reducing vacancies requires a confirmation rate that outpaces the attrition rate; at present, it is barely keeping abreast of it.

So I believe what Steve is saying is we either need to develop new methods of preserving and extending the lives of our aging federal judges -- perhaps through alien intervention, cloning, cryonics, or sophisticated and groundbreaking time-travel technologies that are currently beyond our scientific capabilities -- or we just need to confirm some of these nominees.

Hard to tell which is a more realistic and practical course of action given what's happening in DC at the moment.

Federal JNC Applicant List.

Who is Brian Gilchrist and why is on all three applicant lists to be a federal judge for the SD FL, MD FL, and ND FL?

And how come he didn't apply to be U.S. Marshall?

That and more, revealed below......

JNC APPLICANTS NOTICE

Kathleen Williams Renominated to Fill Judge Hurley's Seat.

 

 Yawn -- the judicial appointment crisis continues as Obama renominates 40 plus judicial candidates, including our own federal public defender Kathleen Williams (originally nominated back in July):

The Obama administration sent the dozens of nominations -- 23 of which an official categorized as "emergency" nominees -- back to the Senate, where they will be considered anew by the Judiciary Committee. They may face an additional round of committee hearings, a Senate aide said, but that will be determined by Judiciary Chairman Patrick Leahy (D-Vt.) and the ranking Republican, likely to be, according to a Senate aide, Sen. Chuck Grassley (R-Iowa).

Hearings or no, the committee will have to vote on each candidate again before sending them back to the Senate floor for final consideration. And with more Republicans in the chamber than there were for the past two years, the nominees' chances may be slimmer.

Among those nominated again include 18 who had previously cleared the committee but were not confirmed by the Senate at large. That list includes contested figures like University of California law professor Goodwin Liu, Obama's nominee for the Ninth Circuit Court of Appeals, as well as California magistrate judge Edward Chen, nominated for the District Court for the Northern District of California. Twenty-four other renominated candidates never got a committee vote. 

Marco Rubio, full of ambition, needs to do something that might actually help some people down here and push this nomination for a floor vote.

(Updated to include better photo per Rick's not-so-subtle hint).

Microsoft Billionaire Foiled By Iqbal!

Boy this lame-duck Congress is actually getting a few things done -- (a few) new federal judges even!

So what's the status of efforts to roll back Twombly or Iqbal?

Senator Spector's bill is D.O.A., as is the House version.

That's good news for some, except Microsoft billionaire Paul Allen:

A judge has dismissed Microsoft co-founder Paul Allen’s lawsuit against Google, Apple, Facebook and others for patent infringement.
Back in August, Allen originally claimed that 11 different companies, including YouTube (), Netflix and AOL, had violated four different patents associated with web search and e-commerce. These patents are tied to both software and business methods.

Now, however, a court has sided with Google et al. in a motion to dismiss the case, saying Allen’s claims were too vague and lacked “adequate factual detail to satisfy the dictates of Twombly and Iqbal” — two cases that are precedents for requiring adequate evidentiary support.

Sheesh, you'd think Allen's lawyers would know how to plead around this standard, but apparently not.

From the Court order:

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because Plaintiff has failed to identify the infringing products or devices with any specificity. The Court and Defendants are left to guess what devices infringe on the four patents. Plaintiff only indicates that Defendants have websites, hardware, and software that infringe on the patents or that they are encouraging third parties to use products that infringe on the patents. This fails to indicate to Defendants which of their myriad products or devices may be at issue. These allegations are insufficient to put Defendants on "notice as to what [they] must defend." McZeal, 501 F.3d at 1357 (citing Twombly, 550 U.S. at 565 n.10). They are also too generic to satisfy Form 18. Plaintiff urges the Court and Defendants to have patience and simply await delivery of the infringement contentions as required by Local Rule. This ignores that Local Rules do not trump the Federal Rules of Civil Procedure or the Supreme Court's mandate in Twombly and Iqbal. Fed. R. Civ. P. 83(a)(1); Iqbal, 129 S. Ct. at 1950, 1953. Plaintiff's complaint is little more than labels and conclusions, which are inadequate under Twombly, Iqbal, and even Form 18. The Court GRANTS the motions to dismiss.

I don't do patent litigation, but I'm not sure a heightened pleading standard made the difference here.

You can read the complaint and judge for yourself.

Judicial Appointments Crisis -- Yawn.

As power begins to shift in Congress, judicial appointments continue to lag, with little to no public attention or even interest.

Who's to blame?

Some say Obama is too slow on his nominations, others that a partisan Congress is holding the nominations hostage.

At this point I'm sick of excuses and just want some action.  The Economist takes a hard look and pretty much agrees:

Wherever the fault lies, the backlog is a serious problem. The Judicial Conference, the policymaking body of the federal court system, ranks 50 of the vacancies as “emergencies”. These include district judgeships with 600 or more cases filed and moving nowhere, or 700 or more filings for a circuit panel. The eastern district of California has a thousand-case pile-up. Border courts in Texas, dealing with drugs and immigration cases, are overwhelmed. The small but important district of Delaware, where many companies are incorporated, is making do with just two federal judges, causing havoc in the various commercial cases. Bill Robinson, the incoming president of the American Bar Association, says that the quality of justice inevitably suffers: “Witnesses die, memories fade.”

But the issue fails to exercise the general public—or at least, the general Democratic public. After judges seemed to get too uppity in the 1960s and 1970s, Republicans successfully turned “activist judges” into bogeymen, creating bodies like the Federalist Society to nurture conservative legal talent. And Mr Bush effectively used the bully pulpit to call for an “up-or-down” vote on all his nominees at once, leading to a confrontation but ultimately a compromise with Democratic senators in 2005. Dozens of Mr Obama’s nominees are still waiting for something similar. 

 Sure, all of a sudden Obama's going to develop a backbone and push the GOP to brinkmanship on this issue?

I'm not holding my breath.