Judicial Notice (12.08.24): Naughty Or Nice
‘Unretirements’ by federal judges, a new White House counsel pick, a Trump nominee with an enemies list, and time running out for TikTok.
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Welcome to Judicial Notice, my weekly roundup of the most notable legal news. I usually begin these posts with a quick personal update, and this one will be brief: I had a fun and relaxing Thanksgiving, spent with my husband Zach’s extended family outside Philadelphia. I hope you and your families enjoyed the holiday as well.
Speaking of fun, I had a great time chatting with Zach Abramowitz, the legal-tech guru and investor, and Bridget McCormack, president and CEO of the American Arbitration Association, on the AAAi Podcast. We discussed how artificial intelligence is reshaping the practice of law and the legal profession—which will also be the focus of the coming week’s episode of my Original Jurisdiction podcast, featuring a guest at the cutting edge of AI in legal.
Now, on to the news—of which there’s no shortage, especially since this is a double edition of Judicial Notice covering the past two weeks of news (since I didn’t publish over Thanksgiving weekend).
Lawyer of the Week: Kash Patel.
The Trump administration recently revealed a number of proposed nominees for high-ranking legal or law-related positions. They include Paul Atkins for chair of the Securities and Exchange Commission (SEC), Gail Slater for assistant attorney general (AAG) overseeing the Antitrust Division of the U.S. Department of Justice (DOJ), and Jamieson Greer for U.S. trade representative. All three have extensive expertise and experience in their fields: Atkins was an SEC commissioner for six years, Slater spent a decade at the Federal Trade Commission (FTC), and Greer served as chief of staff to Robert Lighthizer, trade representative during Trump’s first term. They’re nice choices, well-respected and qualified, and I predict they’ll be confirmed.
And then there’s Kash Patel. Over Thanksgiving weekend, Donald Trump announced his plan to nominate Patel to serve as director of the Federal Bureau of Investigation (FBI)—which will require Trump to fire current FBI director Chris Wray after getting inaugurated as president. Although Wray is a Trump appointee whose 10-year term doesn’t expire until 2027, he’s on the president-elect’s “naughty list,” thanks to such things as the FBI’s 2022 search of Mar-a-Lago for classified documents.
Patel, 44, is not without some relevant experience. He served as a federal prosecutor and public defender, and he worked at the National Security Council and the Office of the Director of National Intelligence during the first Trump administration. At least in terms of his résumé, Patel is not as outrageously unqualified to lead the FBI as Matt Gaetz was unqualified to serve as U.S. attorney general (although note that Patel has no real managerial or leadership experience, which might be nice for leading an agency with 35,000 employees).
The possible problems with Patel are different—and some have argued, as Sarah Isgur did on Advisory Opinions (AO), that Patel is an even worse pick than Gaetz. As David French observed in The New York Times, Patel is “the ultimate Trump loyalist,” someone “so absurdly devoted to Trump that he wrote a children’s book about Trump, called The Plot Against the King, in which he describes the Russia investigation as a plot by ‘Hillary Queenton’ against ‘King Donald.’” Nice.
Critics of Trump fear that he’ll weaponize the FBI and DOJ against his enemies—and that Patel, instead of stopping Trump, would aid him. And their concerns are understandable. As Patel declared on the podcast of former Trump adviser Steve Bannon, “We’re going to come after the people in the media… who helped Joe Biden rig presidential elections. We’re going to come after you, whether it’s criminally or civilly—we’ll figure that out.”
But it’s not just Trump’s foes in the media who should be worried. In another book, Government Gangsters: The Deep State, the Truth, and the Battle for Our Democracy, Patel included an appendix of 60 current and former government officials that basically amounts to a Trump “enemies list.” It includes not just President Biden, Vice President Harris, and Attorney General Garland, but Trump administration alumni that Patel sees as disloyal, such as former AG Bill Barr and former White House counsel Pat Cipollone. (Patel labels his list “Members of the Executive Branch Deep State”—but prominent politicians and political appointees don’t fall under the traditional definition of “deep state,” which generally connotes clandestine operatives working behind the scenes.)
Is it possible that Trump’s and Patel’s talk of revenge won’t lead to much? Sure. But if their promised retribution does come to pass, we can’t say we weren’t warned—which is presumably why the Biden White House is exploring the idea of issuing preemptive, blanket pardons to possible Trump targets.
Runners-up for Lawyer of the Week: Chase Strangio and J. Matthew Rice made their debuts as Supreme Court oral advocates in United States v. Skrmetti, the equal-protection challenge to Tennessee’s ban on certain medical treatments for transgender minors. Strangio is the first openly transgender person to argue before SCOTUS, while Rice was a minor-league baseball player before graduating first in his class from Berkeley Law and clerking for Justice Thomas. Strangio, joined by Solicitor General Elizabeth Prelogar, argued that the statute discriminates based on sex and should be subject to heightened scrutiny; Matt Rice argued in favor of rational-basis scrutiny, which is what the Sixth Circuit applied in upholding his home state’s law.
As for the likely outcome, I count five votes for Tennessee. And that’s even taking the uncharacteristic silence of Justice Gorsuch—who wrote the landmark opinion in Bostock v. Clayton County, applying Title VII’s employment-discrimination protections to transgender people—as a vote against the state. But some experts, including Professors Jessica Clarke and Josh Blackman, believe Gorsuch will side with Tennessee in the end.
In memoriam: J. Stanley Pottinger—former AAG for the DOJ’s Civil Rights Division, known for figuring out the identity of the Watergate informant known as “Deep Throat”—passed away at 84. May he rest in peace.
Judges of the Week: Judges Algenon Marbley and Max Cogburn.
I have a suggestion for leading legal lexicographer Bryan Garner to consider for the next edition of Black’s Law Dictionary: “unretire.” While the word has a general meaning—“to leave retirement” or “rejoin the workforce”—it has acquired a specific meaning in the legal context. As you can see from the headline of this Bloomberg Law article, “Judge Called ‘Political Hack’ for Unretiring After Trump Win,” the term in the legal world refers to the phenomenon of a federal judge announcing a plan to retire from active service and then rescinding that plan.
And why might a judge do that? When a federal judge leaves active service—whether to retire from the bench completely or to take “senior status,” a form of semi-retirement in which they can still hear cases—the president gets to appoint a successor to their seat. But let’s say control of the White House changes after a judge announces they plan to retire, but before the judge formally steps down. A politically motivated judge might not want to give a president of the “other” party a powerful federal judgeship to fill. So the judge “unretires,” and voilà—no more judicial vacancy.
Since Trump won the 2024 presidential election, two Democratic appointees—Judges Algenon Marbley (S.D. Ohio), a Clinton appointee, and Max Cogburn (W.D.N.C.), an Obama appointee—retracted their retirement plans. They were able to do so because they made their departures from active service contingent upon the confirmation of their successors—and in their cases, President Biden never nominated replacements.
Senator Minority Leader Mitch McConnell (R-Ky.) criticized Judges Cogburn and Marbley, condemning them as “partisan Democrat district judges” who walked back their plans “after the American people voted to fire Democrats” in last month’s election. Senator Thom Tillis (R-N.C.) condemned Judge Cogburn, from the senator’s own state of North Carolina, as a “political hack,” arguing that “you can’t be an umpire of balls and strikes and decide you’re going to retire and then because you didn’t get the appointee you want, not to. That’s politics at its rawest.” (Or naughtiest.)
Both senators urged the two circuit judges who could theoretically still unretire to deny Trump their seats—Judges James Wynn (4th Cir.), also from North Carolina, and Jane Branstetter Stranch (6th Cir.), from Tennessee—not to pull that stunt. Senator McConnell even warned that they could face “significant ethics complaints” and “serial recusal demands” from the (Trump) DOJ if they remained on the bench.
Even if there’s no law or other rule prohibiting unretirement, I share the senators’ view that it’s improper. As Laurie Lin and I wrote three years ago today in a piece for The Wall Street Journal (gift link), judges shouldn’t engage in gamesmanship when it comes to the selection of their successors—and the federal judiciary should consider revising the Code of Conduct for U.S. Judges to require judges who announce their retirements to do so by a fixed and irrevocable retirement date.
Other judges in the news:
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