Judicial Notice (03.16.25): Stop The Insanity
A new Ninth Circuit opening, Trump’s ongoing war with Biglaw, two circuit-court wins for academic freedom, and a pair of major M&A hires.
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Five years ago today, I was admitted to NYU Langone with a critical case of Covid-19. I wound up staying in the hospital for almost three weeks, including a few days on a ventilator. I made it through that ordeal thanks to the thoughts, prayers, and other support I received from people around the world—including many of you. To everyone who helped me through that terrifying time, I thank you.
My life has changed a lot since March 2020—mostly for the better. My checkups and blood work suggest that I’m healthy, and I’m (finally) at my goal weight. In a typical week, I exercise on five days and sleep well on six (the exception being Saturday night, when I stay up late working on Judicial Notice). The one thing I can’t do post-Covid is long-distance running, but that’s fine; I’ve picked up other forms of exercise, including walking, jogging, aerobics, weight training, Pilates, and barre.
There have been other positive changes. My husband Zach and I now have two beautiful boys—back in 2020, we had just one—and we’ve moved from Manhattan to the suburbs, where we have much more space (but also homeowner hassles). Professionally, I’m delighted to be writing Original Jurisdiction, which will turn five later this year. Thanks to all of you for making this publication possible.
Now, on to the news—which I follow obsessively, at least in terms of legal news, so I can digest it for you each week in Judicial Notice.
(By the way, Gail Collins put together this fun little quiz for The New York Times (gift link), so you can see how closely you’re following the news. I scored 14 out of 15 and was told, “There is such a thing as paying too much attention.”)
Lawyers of the Week: Dane Butswinkas and the Williams & Connolly team handling Perkins Coie v. U.S. Department of Justice (DOJ).
On Friday, I published a detailed discussion of the deeply disturbing executive order targeting Perkins Coie (and I assume knowledge of that post here). To quote Ken White of Serious Trouble, I tried my best “to convey how exceptional and bizarre and offensive it is, without jumping up and down and yelling.”
Which Biglaw firm had the courage to represent Perkins Coie in its challenge to this awful order, after other firms passed? As The American Lawyer’s former top editor, Aric Press, told me, “if you’re jammed up in Washington, D.C, the firm to call is Williams & Connolly.” So it should come as no surprise that my Lawyers of the Week are Dane Butswinkas and the 13 other W&C partners who are representing Perkins Coie. They had the guts to take this case, and they obtained an excellent initial result: a temporary restraining order (TRO) from Judge Beryl Howell (D.D.C.), blocking the Order’s key provisions. I’ll add just a few brief observations to my prior praise.
First, I was struck by the size of the team: 14 partners (and who knows how many associates). Given the nature of this matter, which doesn’t involve a lot of factual disputes or millions of documents, such a large team isn’t needed to handle the work. Instead, Williams & Connolly is making a statement: our lawyers are willing to stand up for the rule of law, and they’re not going to be cowed into submission by the Trump administration. I give extra props to Matthew Nicholson, who’s probably conservative (he clerked for Justice Thomas, who generally doesn’t hire lefties).
Second, I was impressed by a strategic decision the team made: they sought a TRO blocking not the entire Order, but only certain provisions (leaving out the ones about reviewing security clearances and investigating possible DEI-related racial discrimination). This lent greater credibility to the requests they did make in their TRO, and it could have played a role in the successful outcome of the TRO hearing. I suspect Judge Howell would have blocked the entire Order if she had been asked to—but at the time that W&C filed the complaint and motion for a TRO, they didn’t know that they’d draw a judge who’d be so receptive to their claims.
Could Williams & Connolly end up paying a price for representing Perkins Coie? Quite possibly. During the TRO hearing, Judge Howell asked DOJ Chief of Staff Chad Mizelle whether the Trump administration might go after W&C for getting involved in this case—and he wouldn’t rule it out. Query whether former partners Emmet Flood, who represented Trump in Russia-related matters, and Sarah Harris, now acting solicitor general, might be able to protect the firm (because as we’ve seen, your treatment by Trump depends greatly on whom you know).
Law firm leaders have been largely silent about Donald Trump’s attacks on Perkins Coie and Covington & Burling (where lawyers who represented former special counsel Jack Smith are losing their security clearances). These chairs and managing partners are probably afraid that their firms might be Trump’s next targets—and their fears are not misplaced. When Trump signed the Perkins Coie order, he mentioned that “about 15 different firms” could eventually face scrutiny.
And we know at least one of them: Paul Weiss. On Friday, Trump signed an executive order titled “Addressing Risks from Paul Weiss.” The order is substantively the same as the Perkins Coie order, covering everything from security clearances to government contracts to access to federal buildings. And in the case of Paul Weiss, the stripping of security clearances might affect the work of lawyers like former attorney general Loretta Lynch and former homeland security secretary Jeh Johnson; I wouldn’t be surprised to learn that they have high-level clearances they rely upon when representing clients in sensitive matters.
Why Paul Weiss? In the order, Trump complains that the firm “hired unethical attorney Mark Pomerantz, who had previously left Paul Weiss to join the Manhattan District Attorney’s office solely to manufacture a prosecution against me.” And then in a speech delivered at the DOJ complaining about the justice system, Trump attacked Pomerantz again—along with other attorneys like former special counsel Jack Smith and former Clinton campaign lawyer Marc Elias, dubbing them “really bad people.”
Law firm leaders have been largely silent about Trump’s actions, but associates are stepping up to the plate. As of this writing, more than 300 have signed an open letter denouncing the Trump administration’s “all-out attack aimed at dismantling rule-of-law norms.” As one organizer of the effort, Rachel Cohen, told Law.com, “If the firms are hoping to ignore this because partnerships are concerned about repercussions, there was utility in flagging to the partnerships that that’s not where the associates are, and we’re very concerned about this.”
Other lawyers in the news:
Lawyers continue to enter—and exit—the Trump administration. The Senate confirmed Gail Slater, Trump’s nominee to lead DOJ Antitrust, by a vote of 78-19. Meanwhile, the Food and Drug Administration’s chief counsel, Hilary Perkins, resigned—only two days into her role—after Senator Josh Hawley (R-Mo.) criticized her for work she did as a career attorney at the DOJ (e.g., defending the FDA in a lawsuit trying to take the abortion drug mifepristone off the market).
Gloria Allred, who casts herself as “a fearless advocate for justice and equality,” has a number of former clients who feel they received something other than justice from her—and several of them spoke to Khadeeja Safdar of The Wall Street Journal (gift link).
The Supreme Court declined to review a Fifth Circuit ruling that tossed a $1.6 billion judgment for BMC Software in a contract dispute with IBM—a big win for IBM’s appellate advocate, Paul Clement.
In other SCOTUS news, the justices granted, vacated, and remanded a Ninth Circuit decision that awarded a Pissarro painting worth millions to a Spanish museum, telling that court to reconsider its ruling in light of a new California law making it easier for victims of persecution to recover stolen property. So the family of Holocaust survivor Lilly Cassirer could still recover the Nazi-looted painting—a nice victory for the Cassirers’ longtime lawyer, David Boies.
Remember “Cat Lawyer” Rod Ponton, who couldn’t figure out how to turn off the cat filter during a court hearing held over Zoom? Four years after going viral, he’s doing just fine—and even references the incident on his business cards.
In memoriam: former U.S. senator Alan Simpson (R-Wyo.) passed away at 93. A graduate of Wyoming Law, he practiced law both before and after his three terms in the Senate. As a member of the Senate Judiciary Committee, he was involved in multiple SCOTUS confirmations. May he rest in peace.
Judges of the Week: Chief Judge Jeffrey Sutton and Judge Richard Sullivan.
(Just as I was about to publish this post, I started hearing about hundreds of Venezuelans accused of being gang members getting sent to El Salvador, based on the Alien Enemies Act of 1798—and possibly in violation of an order from Chief Judge James “Jeb” Boasberg (D.D.C.). The facts are unclear, the situation is in flux, and there will probably be appellate action, so I’ll cover it in next week’s Judicial Notice; writing about it now would be like trying to board a moving bus.)
I’ve been writing extensively in these pages about what I’d call the abuse—no, I don’t think that’s too strong a word—that federal judges have had to put up with lately. They’ve been condemned as “corrupt”—not because of actual evidence of corruption, but simply because they’ve ruled against the Trump administration. At least three are the subject of (frivolous) impeachment efforts. An unknown number have been subject to doxing and threats—which have even extended to their relatives, such as a sister of Justice Amy Coney Barrett who received a bomb threat.
Most sitting judges have remained silent in the face of these attacks—which is understandable and appropriate, given their need to maintain the appearance and reality of impartiality. But the rules of judicial ethics allow and even encourage judges to discuss issues that are important to the administration of justice. And two prominent, Republican-appointed judges are doing just that, in ways relevant to recent events—for which they deserve our praise and thanks.
On Tuesday, Chief Judge Jeffrey Sutton of the Sixth Circuit and Judge Richard Sullivan of the Second Circuit spoke out against threats and impeachment efforts directed at judges. They did so in a call with reporters after a meeting of the U.S. Judicial Conference, the national policymaking body for the federal courts, and their commendable comments were covered by Reuters and Bloomberg Law (via Howard Bashman of How Appealing).
“Threats against judges are threats against constitutional government,” said Judge Sullivan, chair of the Judicial Conference’s security committee. “Everyone should be taking this seriously.” He urged public officials to be “responsible in what they say about our [judicial] process,” because “the reality is that there are a lot of a lot of folks who will respond and react, perhaps inappropriately, based on something they heard or read.” Much of what current critics of the judiciary hear or read comes from social media—e.g., Elon Musk’s Twitter feed—and as Judge Justin Walker (D.C. Cir.) explained in a piece for the Harvard Journal of Law & Public Policy, social media isn’t a good source for accurate legal analysis (unlike Original Jurisdiction, which Judge Walker kindly mentions in his essay).
Chief Judge Sutton, chair of the Judicial Conference’s executive committee, echoed Judge Sullivan’s remarks: “Criticism is no surprise as part of the job [of judging]. But I do think when it gets to the level of a threat, it really is about attacking judicial independence. And that’s just not good for the system or the country.”
And both jurists criticized the use of impeachment to challenge rulings that politicians might not like. Judge Sullivan pointed out that if a litigant opposes a ruling, it can appeal—and “impeachment is not, and shouldn’t be, a short circuiting of that process. So it is concerning if impeachment is used in a way that is designed to do just that.”
“If we dilute the standards for impeachment, that’s not just a problem for judges,” added Chief Judge Sutton. “That’s a problem for all three branches of government.”
Other judges in the news:
The Federal Judges Association (FJA) issued its own statement criticizing “current threats to the federal judiciary—which led Fifth Circuit Judge James Ho to resign from the organization. Why? He complained that the latest statement reflected a “selective” concern for judicial independence, noting that the FJA didn’t issue a similar statement after threats against conservative jurists—including the assassination attempt against Justice Brett Kavanaugh in the wake of Dobbs. “You can’t say that you’re in favor of judicial independence only when it comes to decisions that you like,” Judge Ho said. “That’s not protecting the judiciary, that’s politicizing the judiciary.”
A mistrial was declared in the trial of Orange County Superior Court Judge Jeffrey Ferguson, after the jury couldn’t reach a verdict. The panel was split 11-1 in favor of finding Judge Ferguson guilty of second-degree murder, after he shot his wife Sheryl in their living room (which he claimed was a tragic accident).
In nominations news, Judge Sandra Segal Ikuta, 70, sent a letter to the White House declaring her intent to take senior status—and shared the news with her colleagues on the Ninth Circuit last week, in an email sent to chambers accounts (which are accessible to law clerks and judicial assistants, not just judges). So add a Ninth Circuit spot to the list of circuit-court seats that Trump can fill. If you have thoughts on possible picks to succeed Judge Ikuta, please email me: davidlat at substack dot com. [UPDATE (3/18/2025, 2:00 p.m.): A Ninth Circuit spokesperson confirmed to Reuters and Law360 that Judge Ikuta will take senior status upon the appointment of her successor.]
Job of the Week: an unposted search for a midlevel international trade associate.
Lateral Link is assisting a repeat client and global law firm with a new, unposted search for a midlevel international trade associate (classes of 2022–2019). The firm is expanding its international trade group, in response to growing demand tied to the change in administrations, and seeks candidates with experience in trade remedies (antidumping/CVD law and investigations), export controls, or sanctions. Counsel-level candidates will also be considered. The firm is known for its approachable partners, strong mentorship, and leanly staffed matters, offering associates hands-on experience and significant responsibility. Additionally, the firm has strong female and diverse leadership and fosters a highly collaborative and supportive environment. The firm welcomes candidates from government roles or peer law firms. If interested, please send your résumé to vkrasna@laterallink.com.
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