Judicial Notice (09.22.24): Bad Boys
The federal criminal case against Sean Combs, the killing of a Kentucky judge, a stinging benchslap in a high-profile case, and Cahill’s attempted comeback.
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Apologies if I owe you a call, text, email, or direct message on a social-media platform. To be honest, I’ve been in a bit of a funk over the past few weeks, seriously lacking in motivation. Sometimes I read messages, compose responses in my head, but can’t summon up the will to type up and send them. Sorry about that.
On the bright side, I think I’m turning the corner. I had a wonderful time speaking and attending panels at LITFINCON Los Angeles last week. Nerding out over litigation finance is my version of a Taylor Swift concert, the weather could not have been better, and The Maybourne Beverly Hills is a fabulous hotel. And while I adore my two boys—because they are, in fact, adorable—I also appreciate three nights of solid sleep on 600-thread-count sheets.
September is a splendid time to visit southern California—and it’s also a popular time for law clerks to transition into and out of chambers. So this week’s testimonial, fittingly enough, comes from a clerk who’s concluding a federal appellate clerkship: “I love Original Jurisdiction. It’s a great source for everything from caselaw developments to dealmaking to legal industry news.”
I pride myself on the diverse offerings of Original Jurisdiction, which include news, analysis, opinion, and career advice. Alas, I receive more requests for counsel than I can address in Asked and Answered. So if you have a question you’d like to pose, or if you just want to meet me and your fellow readers, grab a sandwich or salad and join OJ’s first “virtual lunch,” this Wednesday, September 25, from 1:30 to 2:30 p.m. (ET). Here’s the Zoom link (passcode “348334”) and the Google calendar entry.
Programming note: the next few weekends are insane for me. Between now and December, I have two weddings to attend, three conferences to speak at, and Harlan’s seventh birthday party to oversee—all falling on the weekends. Apologies in advance if any of this interferes with the normal schedule of Judicial Notice, which normally goes out on Sunday.
Now, on to the news.
Lawyer of the Week: Kannon Shanmugam.
Last Thursday, the U.S. Department of Justice announced the arrest of Panos Anastasiou for allegedly threatening to torture and assassinate six U.S. Supreme Court justices and their relatives. Last month, Judge Peter Messitte (D. Md.) set a June 2025 trial date for Nicholas Roske, accused of attempting to assassinate Justice Brett Kavanaugh.
While I don’t want to draw any direct links (lest I get sued by Sarah Palin), I think it’s fair to wonder whether some of the angry rhetoric surrounding SCOTUS, as well as the federal and state judiciaries more generally, is contributing to an overall climate in which judges and their families are harassed, threatened, or worse. And I’m not alone in entertaining these thoughts.
Kannon Shanmugam of Paul Weiss, a prominent Supreme Court and appellate advocate, raised this possibility in a speech he recently delivered to the Duke Federalist Society, “The Legitimacy of the Supreme Court.” And he identified a second, perhaps more important concern: how attacks on the Court’s legitimacy “are undermining public confidence in the Court and imperiling the rule of law.”
There are definitely real cases of judicial misconduct—including workplace harassment, as discussed in this MSNBC piece by Representative Hank Johnson (D-Ga.) and Aliza Shatzman of the Legal Accountability Project. But as Shanmugam discussed, some criticisms of the Court’s legitimacy, including the alleged ethics “scandals,” are either misplaced or exaggerated. (See also James Burnham’s piece for City Journal, which refutes the ethical attacks in more pointed fashion.)
Shanmugam’s speech garnered coverage in The Wall Street Journal, Bloomberg Law, and Law360—as well as some criticism, for his supposed attempt to curry favor with the justices he argues before in his day job. But the criticism actually supports one of his main themes, which is that critics of the Court, rather than attacking the legitimacy of the Court, “would be better served engaging with the Court’s work on the merits”—not the justices on a personal level. And I agree. If you take issue with the positions of the justices (or of Kannon Shanmugam), attack the positions, not the people. In my own work here at OJ, I try to avoid ad hominem attacks as much as possible—with the exception of occasional, good-natured ribbing—so if you ever see me getting personal, please email me and bring it to my attention.
Two well-known lawyers, one on the left and one on the right, were the subject of detailed and delightful profiles:
U.S. Solicitor General Elizabeth Prelogar got profiled by Cristian Farias for Vanity Fair (via Howard Bashman of How Appealing). She didn’t speak on the record, but the former Miss Idaho did pose for some very cool photographs. If Article III Groupie were still around, though, she’d respectfully suggest that General Prelogar mix up her hairstyles occasionally; while always sporting a perfectly coiffed, glossy helmet, replete with bangs, offers the “never having to think about it” advantage of Steve Jobs’s black turtlenecks, variety is the spice of life.
Mike Davis, a former law clerk to Justice Gorsuch and chief counsel for nominations to Senate Judiciary Chair Chuck Grassley (R-Iowa), got profiled by Adam Wren for Politico. If you’re not familiar with Davis, you should be: if Donald Trump wins in November, Davis is a possibility for White House counsel or acting attorney general (acting rather than Senate-confirmed because, in Davis’s words, “it would require 100 Republican senators to get me confirmed”).
In memoriam: Larry Gesner, co-managing partner of Venable, passed away at 66, after a long illness. May he rest in peace.
Judge of the Week: Judge Kevin Mullins.
On Thursday afternoon, Judge Kevin Mullins of Letcher County, Kentucky, was shot and killed in chambers. The alleged shooter was County Sheriff Shawn “Mickey” Stines, who previously served as Judge Mullins’s bailiff and was responsible for protecting the judge in his current job. After the shooting, Stines surrendered, was taken to the Leslie County Detention Center, and charged with murder.
Stines was deposed on Monday in a federal lawsuit against one of his deputies, who allegedly gave favorable treatment to a female arrestee in exchange for sexual favors. Stines is also named in the suit, which claims that he inadequately trained and supervised that deputy—but Judge Mullins was not a defendant in the lawsuit, and there was no indication that his killing was connected to that case.
So why would Sheriff Stines shoot Judge Mullins? There was no obvious explanation, at least not immediately. The two men had worked together for years in Whitesburg, a small town in the Appalachian Mountains with a population of around 1,800, and were described as longtime friends. Earlier that afternoon, they had lunch together, along with other court employees. After lunch, they had a one-on-one meeting in Judge Mullins’s chambers—which led to an argument, followed by the alleged shooting.
Some rumors—which are merely rumors at this point—are making the rounds.
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