Judicial Notice (04.07.24): Age Is Just A Number
Judge Aileen Cannon’s shrewd move, a conservative hire at Yale Law, Winston's interesting new offering, and other legal news from the week that was.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here. Thanks!
April will be a month of travel and talks for me. On Saturday I returned from a visit to Charlottesville, where I spoke at UVA Law School—one of my favorite schools and now, according to the 2024 U.S. News law school rankings, the #4 law school in the country. So I missed the earthquake that hit New Jersey on Friday (but I’m happy to report that our family and home were unaffected).1
I also made some media appearances last week. On Tuesday night, I appeared on MSNBC’s Alex Wagner Tonight, where Alex and I talked about the latest developments in the Trump documents case. Alas, even though we taped around 9:30 p.m., we did not yet have the parties’ responses to Judge Aileen Cannon’s request for jury instructions (but I discuss them in detail below).
On Wednesday, the essay that my husband Zach Shemtob and I wrote about the importance of civil litigation in regulating Donald Trump’s behavior appeared in the hard-copy version of the New York Times. You can read the piece using this gift link, whether or not you subscribe to the Times.
Law school is on people’s minds—not just because of the new rankings, but also upcoming deposit deadlines. So this week’s testimonial for OJ comes from a leading figure in legal education, former U. Chicago admissions dean Anna Ivey, now CEO of Ivey Consulting: “I tell law school applicants: If you want to be up to speed or just get a head start, Original Jurisdiction is absolutely worth a subscription for future lawyers.” (If you’re a pre-law student interested in a free trial of a paid subscription, email me at davidlat@substack.com, subject line “Comp Sup,” and I’ll set you up.)
Now, on to the news.
Lawyer of the Week: Todd Blanche.
Why would you leave behind a successful career as a Biglaw partner to represent Donald Trump? That’s the central question raised in this interesting Times profile of Todd Blanche, Trump’s lead counsel in the Manhattan criminal case over hush-money payments to Stormy Daniels, which will be going to trial in a few weeks.
I doubt taking on Trump as a client was just—or even mainly—about money. Blanche earned at least $2.3 million last year for his work defending the former president in the Manhattan hush-money case, D.C. election-subversion case, and Southern District of Florida documents case. But profits per equity partner at Blanche’s former firm, Cadwalader Wickersham & Taft, exceed $3 million a year—so he might even have taken a pay cut.
And he didn’t merely sign up to represent Trump. Blanche changed his party registration from Democrat to Republican, moved his residence from New York to Florida, and even took his family to a Trump campaign party for Super Tuesday. His transformation “has baffled Mr. Blanche’s former colleagues at the U.S. attorney’s office in the Southern District of New York,” the Times reports. But the authors of the profile—Maggie Haberman, Ben Protess, and Alan Feuer—noted that defending the Donald has its advantages:
No longer just another high-priced defense lawyer in a city full of them, Mr. Blanche is handling the country’s most significant criminal case, raising his profile and creating a question about whether a door would open for him in a second Trump administration.
He jokes about having his eye on an ambassadorship to Italy, friends say, although he often says he has no actual interest in a government job. Still, many assume he would welcome the chance to run his old office, the Southern District, a role that the agency’s alumni covet.
Blanche has been pushing the envelope a bit in his Trump work. As noted by Andrew Weissmann on Twitter, Blanche has been willing to sign certain Trump filings—such as a new (and doomed) motion to recuse Justice Juan Merchan from the Manhattan hush-money case, based on the political consulting work of his daughter—that his co-counsel, the well-respected Susan Necheles, has conspicuously not signed.
Many lawyers to the ex-president end up worse after the experience—like former U.S. Justice Department official Jeffrey Clark, one step closer to disbarment after a Thursday ruling from the D.C. Bar’s Office of Disciplinary Counsel. Will Todd Blanche join their ranks? Or will he wind up as U.S. attorney or ambassador? Time will tell.
Other lawyers in the news:
Speaking of the prospect of a second Trump administration, the conservative legal movement “faces an existential test,” as Gregg Nunziata of the Society for the Rule of Law argued in a thoughtful piece for The Dispatch. More specifically, according to Nunziata, “there are signs that the illiberalism of the Trump era has begun to infect how some legal conservatives think about their core commitments to the role of the courts.” (For respectful pushback on his thesis, listen to the latest episode of Advisory Opinions.)
Law360’s Jeff Overley conducted an in-depth interview of Jessica Ellsworth, a partner at Hogan Lovells. In this Term—her first one arguing before the U.S. Supreme Court—Ellsworth had not one but two turns at the podium at One First Street. See also my latest podcast guest, former Sotomayor clerk Easha Anand, who went from zero to three SCOTUS arguments in a single Term.
Judge of the Week: Justice Sonia Sotomayor.
Speaking of Justice Sonia Sotomayor, she was all over the news last week—even though the Court released no new opinions. Why? There’s a push to get her off the bench—and it’s coming not from the right, but from the left.
In the past few weeks, as Howard Bashman has helpfully tracked at How Appealing, we’ve seen the emergence of a cottage industry of left-leaning legal commentators calling upon the Court’s first Latina justice to step aside. Their argument, in a nutshell: Justice Sotomayor is 69, she’s not in perfect health (a diabetic since childhood), and if she retires now, her successor can be selected by a Democratic president and Senate. But if she sticks around into a second Trump Administration and then departs the Court unexpectedly, her replacement might be picked by Donald Trump and a Republican Senate—and the Court, already 6-3 in favor of conservatives, would shift even farther to the right.
I understand why the left remains traumatized by how Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett. That “switch in time” paved the way for overruling Roe v. Wade in Dobbs, plus a whole host of other right-wing rulings—comprehensively chronicled by my former colleague Elie Mystal in his latest column for The Nation, “No, Stephen Breyer, the Supreme Court Is Not Our Friend.”
But I agree with Dean Erwin Chemerinsky, a prominent proponent in 2014 of RBG retiring and therefore a credible voice on the topic: calls for Justice Sotomayor to step down now are unwarranted. As Chemerinsky told Sahil Kapur and Lawrence Hurley of NBC News, there’s “a significant difference” between the two cases. Most notably, Justice Ginsburg was 81 when Chemerinsky wrote his widely discussed Politico piece recommending her retirement, while Justice Sotomayor is only 69. Furthermore, as noted by Matt Ford in the New Republic, Justice Ginsburg struggled for years with various forms of cancer, her ultimate cause of death. In contrast, Justice Sotomayor’s type 1 diabetes is eminently treatable and apparently well-managed.
There’s always going to be someone younger and healthier out there, so I’m not sure what the limiting principle is here. Should we ask Justice Ketanji Brown Jackson, who turns 54 later this year, to step aside in favor of, say, Judge Brad Garcia (D.C. Cir.), who’s 15 years her junior? While I agree that Democrats should focus more on youth in their judicial nominees—which the Biden Administration, to its credit, has done—there’s a point at which it starts to seem a bit silly. So I share Matt Ford’s view that “[t]he best way to ensure that Sotomayor retires under a Democratic president and a Democratic Senate majority is to elect them.”
Other judges in the news:
Chief Judge David Godbey said in a letter to Senate Majority Leader Chuck Schumer (D-N.Y.) that the Northern District of Texas would not be following the new policy recommendation of the Judicial Conference for how to assign cases seeking universal injunctions or similar nationwide relief, after the judges of the district met and reached a “consensus” to maintain the status quo. But Judge Sam Lindsay (N.D. Tex.), who attended that meeting, told the Times that the judges simply agreed to “postpone discussion of the matter,” not to reject the policy on the merits.
Judge Ana Reyes (D.D.C.) delivered what Josh Gerstein and Kyle Cheney of Politico described as “a remarkable, frenetic thrashing” of Justice Department lawyers—or to use a technical legal term from Black’s Law Dictionary, a benchslapping—in proceedings about Hunter Biden-related subpoenas issued in the impeachment probe of President Joe Biden.
Retired Justice Stephen Breyer will start sitting by designation on the First Circuit—on which he served for more than a decade, including four years as chief judge, before his ascension to SCOTUS. And retired Justice Anthony Kennedy has a two-volume memoir, Life and Law: The Early Years and Life and Law: The Court Years, coming out this October.
Speaking of elderly jurists, happy birthday to Judge I. Leo Glasser (E.D.N.Y.), who turned 100 on April 6—and continues to hear cases. On my last visit to see Judge Fred Block in chambers, we popped in to visit Judge Glasser—and he seemed to me to be doing great, not unlike Judge Pauline Newman (Fed. Cir.), who turns 97 in June.
Speaking of Judge Newman, she continues to fight her battle to return to the bench—and in her latest court filing, she reiterates her argument that the Judicial Conduct and Disability Act violates the U.S. Constitution.
Speaking of judicial misconduct proceedings, Judge Reggie Walton (D.D.C.) is the subject of an ethics complaint filed by Mike Davis, founder of the Article III Project, based on what Davis described as “an unprecedented, inappropriate, and prejudicial [CNN] interview” that Judge Walton gave, in which he “criticiz[ed] President Trump for raising evidence of judicial bias” by Justice Juan Merchan.
And speaking of allegations of judicial misbehavior, I’m working on a follow-up story about last week’s Judge of the Week, the unnamed jurist with an “overly harsh” management style (whom I plan to name). If you’d like to contribute to my story, whether on the record or anonymously, please drop me a line.
In nominations news, Judge David Hurd (N.D.N.Y.) announced his plan to take senior status—which hopefully he won’t retract this time. And in non-Article III judgeship news, retired Weil Gotshal partner Alfredo Pérez will likely be joining the Southern District of Texas bankruptcy court—replacing former bankruptcy judge David Jones, who resigned after revelations that he was in a years-long romantic relationship with Elizabeth Freeman, a bankruptcy attorney for whom he had approved legal fees.
In memoriam: Judge Roger Hugh Lawson Jr. (M.D. Ga.) passed away at 82. And because he “despised obituaries written by funeral home hacks,” he wrote his own—which is witty and well-done. May he rest in peace.
Ruling of the Week: United States v. Trump (denial of motion to dismiss based on the Presidential Records Act).
Judge Aileen Cannon (S.D. Fla.) went off again. This time around, she trained her fire on both Team Trump and Special Counsel Jack Smith—but in a way that’s more dangerous for Smith, despite some media coverage to the contrary.
Keep reading with a 7-day free trial
Subscribe to Original Jurisdiction to keep reading this post and get 7 days of free access to the full post archives.