Judicial Notice (12.22.24): U Mad, Bro?

Angry associates vent about bonuses, a jilted judicial nominee speaks his mind, and Trump sues another media outlet.

Biglaw’s latest high-profile client: Blake Lively (photo by Taylor Hill/FilmMagic via Getty Images).

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Here’s a fun fact: for the first time in almost two decades—since 2005, to be exact—the first night of Hanukkah will fall on Christmas Day. To those of you who celebrate either or both holidays, I wish you a happy Chrismukkah.

We’re currently staying with my parents, who live about 45 minutes away from us in northern New Jersey, and we’ll celebrate Christmas here. We’ll then fly out to the West Coast, where we’ll spend Hanukkah with Zach’s brother and his family.

I will be writing over the next two weeks. But I’ll probably skip Judicial Notice next weekend (December 28-29), and I’m also skipping the podcast episode that would have posted on Christmas. Judicial Notice should return in the first weekend of January, and the next podcast episode should air on or about January 8.

Now, on to the news.

Lawyer of the Week: Adeel Mangi.

On Monday, Patterson Belknap partner and Third Circuit nominee Adeel Mangi sent a letter to President Joe Biden, after it became clear that Mangi would not be confirmed as the first Muslim American to serve as a federal appellate judge. Republicans attacked him as antisemitic and anti-police, based on his ties to two controversial progressive organizations (although Mangi was not directly involved in the controversies). After three Democratic senators—Senators Catherine Cortez Masto and Jacky Rosen of Nevada, plus Senator Joe Manchin III of West Virginia—said they would not support him, his nomination was doomed.

Here are excerpts from Mangi’s missive to President Biden:

• “When my nomination then came before the Senate Judiciary Committee, I was prepared to answer any questions about my qualifications, philosophy, or legal issues. I received none. Instead, I was asked questions about Israel, whether I supported Hamas, and whether I celebrated the anniversary of 9/11. Even more revealing, however, was the tone. The underlying premise appeared to be that because I am Muslim, surely I support terrorism and celebrate 9/11.”

• “As Senator Whitehouse revealed on the Senate floor, this was an organized smear campaign fueled by dark money. But it did not end there. After Jewish groups came to my defense, these same attackers pivoted focus to a new absurdity, claiming that I supported the killing of police officers—silently underpinned, in my view, by the notion that as a Muslim I surely support violence, including against law enforcement.”

• “Two allied Senators from a state far from the Third Circuit [Senators Masto and Rosen] announced their opposition ostensibly based on the attacks claiming I am against law enforcement. I will not assume the worst possible motivation for their embrace of this attack. But to me that leaves two possibilities: that these Senators lack the wisdom to discern the truth, which exposes a catastrophic lack of judgment; or they used my nomination to court conservative voters in an election year, which exposes a catastrophic lack of principle…. Meanwhile, a third Senator [Senator Manchin] literally handed control of his vote to Republicans [by declaring that he wouldn’t vote for nominees lacking bipartisan support]. To fetishize bipartisanship amidst an outrageous attack campaign is not a virtue—it is a preening abandonment of morality.”

• “[W]e have a fundamentally broken process for choosing federal judges. This is no longer a system for evaluating fitness for judicial office. It is now a channel for the raising of money based on performative McCarthyism before video cameras, and for the dissemination of dark-money-funded attacks that especially target minorities. Nominees pay the price and so too does our nation. Who will give up the rewards of private sector success for public service, if the added price is character assassination and wading through a Senatorial swamp like this one?”

Mangi’s letter won praise from progressives—like Lydia Polgreen of The New York Times, who said it was “courageous” to have sent this “passionate” letter, and Chris Geidner of Law Dork, who said the letter “should be required reading for anyone who wants to know how to deal with opponents of pluralism, diversity, and democracy—in part with a willingness to call out racists, bigots, and political opportunists.”

Mangi was criticized by conservatives—like Carrie Severino, who said that he “has only himself to blame,” and Ilya Shapiro, who shared a letter that Judge Raag Singhal (S.D. Fla.) sent to Senate Minority Leader Mitch McConnell in response to Mangi’s. Judge Singhal—a 2019 Trump appointee and, like Mangi, a person of color—pointed out that the same supposedly “broken” confirmation process resulted in the confirmation of three other Muslim judges: Judges Zahid Quraishi (D.N.J.), Nusrat Choudhury (E.D.N.Y.), and Mustafa Kasubhai (D. Oregon).

In fairness to Mangi, just because three Muslim nominees won confirmation doesn’t mean the attacks against Mangi weren’t based, at least in part, on anti-Muslim bias. But a different portion of Judge Singhal’s letter did resonate with me: “Mr. Mangi is 47 years old. If he feels he is not a viable option for the incoming administration, he can be considered again in the next administration in 2028 at age 51. If he’s not viable for that administration, he can be considered yet again in 2032 at age 55.” (Judge Singhal himself took the bench at age 55 or 56, depending on his birthdate—most likely 56, since he assumed office on December 20, 2019.)

But with his controversial letter to the president, Mangi surely took himself out of the running for a future federal judicial vacancy. He made a choice: he spoke out against perceived injustice, in the present, instead of holding his tongue, for the sake of the future. Was that the right decision? Over the years, I’ve seen folks do it both ways.

In New York legal circles, it was widely known (or at the very least speculated) that then-Judge Sonia Sotomayor was personally quite left-leaning. But during her many years on the S.D.N.Y. or Second Circuit, she ruled like a moderate—sometimes even punting in controversial cases that could have gotten her into trouble. And it worked out for her: as a justice on the Supreme Court, she can advance her progressive ideals to a much greater degree, speaking truth to power on a national stage. But for every Justice Sotomayor, there are some unknown number of lawyers and judges—some on the left, some on the right—who hold their tongues or trim their sails, but never become judges or justices.

So should you act strategically to maximize your career options, or go on with your bad self? I honestly don’t know, but welcome your thoughts.

In memoriam:

• Professor George Priest of Yale Law School, a distinguished scholar of law and economics, passed away at 77. I had the pleasure of taking antitrust from him—and he was not only brilliant, but hilarious.

• Stephen Cozen, founder and chair of the Am Law 100 firm Cozen O’Connor, passed away at 85.

• Billionaire David Bonderman—a civil-rights lawyer at the U.S. Department of Justice (DOJ) and partner at Arnold & Porter, who left the practice of law to co-found the private-equity giant TPG—passed away at 82.

• Roy Englert Sr.—a World War II veteran and Treasury Department lawyer, who took up running at age 50 and set age-group world records into his 90s—passed away at 102. (I learned of his passing from his son, the noted appellate advocate Roy Englert Jr. of Kramer Levin.)

May they rest in peace.

Judge of the Week: Justice Ketanji Brown Jackson.

Earlier this month, Justice Ketanji Brown Jackson fulfilled her longtime dream of becoming the first SCOTUS justice to perform on Broadway. For more, watch this six-minute clip from CBS News, featuring excerpts from her performance in & Juliet—in a small role, written specifically for her—plus an interview with the justice.

As Professor Stephen Carter noted in his Bloomberg column, the reviews were “mostly raves.” But there were dissenters—like Professor Josh Blackman, writing at The Volokh Conspiracy:

[T]he show created a special role just for her, and wrote lines just for her. This was an experience that was not available to anyone else. And I’ve seen no suggestion that the producers of & Juliet had some sort of pre-existing friendship with Justice Jackson. It is true that Jackson was performing some work, but the show was clearly giving the Junior Justice something of value—indeed something that has no price tag….

Justice Jackson will surely be able to disclose these gifts, but whatever dollar amount she lists will not even come close to signifying the true value. How do you quantify a ‘dream come true’? And why are these strangers to Justice Jackson feting her with these gifts? Because she will rule on cases the right way.

As I discussed with Sarah Isgur and David French on Advisory Opinions (AO), starting around 49:45, I wasn’t hugely troubled. I also wasn’t hugely troubled, as I wrote at the time, by Justice Clarence Thomas traveling on real-estate magnate Harlan Crow’s private jet and not disclosing it—at a time when such disclosures weren’t required. (By the way, a 93-page report released last week by Democratic staff members of the Senate Judiciary Committee revealed that Justice Thomas took two previously unreported trips on Air Crow—in 2021, before he was required to report them.)

While appearing on Broadway is an amazing experience, SCOTUS justices enjoy all sorts of amazing experiences that the rest of us do not—and Blackman even lists several, such as throwing out first pitches at baseball games or serving as grand marshal of the Rose Bowl parade (as the late Justice O’Connor did). And while this might, in our highly populist age, make some people mad, not all such privileges are violations. Sure, appearing in a Broadway show and then not recusing if a producer of the show litigates before SCOTUS would be a violation—but I’m unsure of what specific ethical rule is violated by simply appearing in the show, standing alone.

And as you can tell from the CBS clip, showing all the rehearsal time she had to put in, it was Justice Jackson who provided something of value to the producers and the show. Yes, some (mostly conservative) observers had snarky asides about her performance. But it’s clear that audiences loved her, viewing her presence in the production and participation in a post-show talkback as positives.

Professor Blackman raised one additional issue. After noting that & Juliet explores some LGBTQ+ themes, he posed this rhetorical question: “Does Justice Jackson's participation in & Juliet, of all plays, cast any doubt on her participation in Skrmetti?” (Skrmetti, previously discussed in these pages, concerns Tennessee’s ban on certain gender-affirming care for transgender minors.)

Again, call me an ethics dove or squish, but I’m untroubled (as was conservative commentator Ed Whelan). The justices do things all the time that telegraph how they feel in a general sense about issues—e.g., justices appearing at events for the Federalist Society, an organization of conservative or libertarian lawyers, or speaking at right-leaning or religiously affiliated law schools, like Scalia Law or Notre Dame. These aren’t ethical violations, by themselves.

Would it be better for the judiciary if, as Professor Carter wrote, justices took a more cautious approach to outside activities that might present ethical entanglements? Probably. Would it be preferable if all the justices, liberals and conservatives alike, lived more hermetic lives? Possibly. (Think of the reclusive Justice David Souter—who never married, had no kids, worked all the time, and engaged in hardly any so-called “extrajudicial activities.”)

But there’s an argument that in order to rule on issues of fundamental importance to American society, the justices should be part of that society. Maybe they should be able to drive around the country in RVs and camp out in Walmart parking lots, as Justice Thomas has done. Maybe they should be able to coach their kids’ sports teams, as Justice Brett Kavanaugh has done. And maybe they should be able to act in community theater—or even Broadway plays. (I’m assuming, by the way, that Justice Jackson wasn’t paid for her work on & Juliet; there are rules about the amount and sources of the justices’ outside income, and I don’t know how they’d apply here.)

As I’ve said for the past 20 years—going back to my first blog, Underneath Their Robes—justices are people too. Or as my husband Zach and I wrote more recently in The Atlantic (gift link), if we want our justices “to be humans, not Platonic Guardians or AI creations, [we] must accept the burdens as well as the benefits of that bargain.”

Other judges in the news: