Judicial Notice (10.22.22): Not-So-Good Behavior

A SCOTUS advocate with style, an Ohio judge gone rogue, and other legal news from the week that was.

The Supreme Court of the United States (photo by David Lat).

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Because I was on vacation last week, I didn’t produce an installment of Judicial Notice; thanks for your indulgence in letting me take the occasional weekend off. Now I ask for your indulgence again: this special double issue of Judicial Notice is a little longer than usual. But it’s a fun one! Or so I like to think.

I still made myself available to journalists seeking comment on legal news. I commented to Adam Liptak of the New York Times about how Harvard University’s failure to provide timely notice to one of its insurers of the landmark affirmative-action lawsuit could cost it millions. I also spoke with Riley Rogerson of the Anchorage Daily News about how Senators Lisa Murkowski and Dan Sullivan take different approaches to judicial nominations, even though they’re both Republicans and both lawyers who care about the judiciary.

Now, on to the news. With two weeks of developments, there’s lots to digest and discuss.

Lawyers of the Week: Lisa Blatt, Roman Martinez, and Yaira Dubin.

After the Supreme Court’s contentious last Term, SCOTUS watchers could use a change of pace. So let’s thank three supremely talented appellate advocates—Lisa Blatt of Williams & Connolly, Roman Martinez of Latham & Watkins, and Yaira Dubin of the U.S. Solicitor’s General Office—for an insightful and delightful oral argument in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith.

I’ve discussed this fascinating copyright/fair-use case several times before, as it wound its way through the lower courts, so I won’t rehash the basics. Instead, I’ll simply commend the trio of lawyers for excellent performances at oral argument—and for giving rise to what Robert Barnes of the Washington Post accurately described as an “entertaining,” “engaging,” and “at times lighthearted debate, at a court where ideological tension is usually more apparent.” Here’s the most widely quoted part of the argument, highlighted by Liptak at the Times:

Justice Clarence Thomas asked a lawyer to assume he was a Prince fan — “which I was in the ’80s.”

This piqued Justice Elena Kagan’s interest. “No longer?” she asked.

As laughter filled the courtroom, Justice Thomas considered the question and responded with a quip. “Only on Thursday night,” he said.

Folks who like nerding out over appellate advocacy—e.g., people who appreciated my podcast interview with Paul Clement—will enjoy comparing the argument styles of Lisa Blatt and Roman Martinez. Both are alums of the Office of the Solicitor General, but with very different approaches. Martinez is classic and conservative, while Blatt is colorful and colloquial—which some adore, like Sarah Isgur of Advisory Opinions, and others don’t love, like Howard Bashman of How Appealing. [UPDATE (10/24/2022, 11:04 p.m.): I stand corrected; Bashman is a fan of Blatt, and I just read too much into his poking fun at her mistakenly stating during the Warhol argument that Norman Lear is dead.]

Like Isgur, I’m a Blatt fan, but I agree that most appellate advocates shouldn’t try this at home (or in their home court). Lisa Blatt’s style works for Lisa Blatt, but it probably won’t work for 99 percent of other SCOTUS lawyers. It’s like the time I moderated a Supreme Court event years ago, featuring Lisa Blatt and another iconic advocate, Tom Goldstein; Blatt rocked a leopard-print dress that worked for her, but wouldn’t work for many others. Instead, most appellate advocates are better off trying to imitate Paul Clement (a good friend of Blatt’s, despite divergent argument styles and political views): conversational, but not casual. For example, I can’t imagine Clement referring to opposing counsel “yakking” about something, as Blatt did during Warhol.

Other lawyers in the news:

• Fired K&L Gates partner Willie Dennis got convicted in Manhattan federal court of three counts of criminal cyberstalking, arising out of thousands of threatening emails and texts he sent to his former partners from 2018 to 2020.

• Congratulations to health-justice lawyer Priti Krishtel, the latest legal eagle to win a MacArthur Foundation fellowship aka “genius grant” (now worth $800,000, up from the $625,000 given to prior classes).

• And congrats to Kei Komuro, who just passed the New York bar exam. The third time proved to be the charm for the husband of Japan’s former Princess Mako. But he’s no longer on the Lowenstein Sandler website, which previously listed him as a “law clerk”; I don’t know whether he was asked to leave after failing a second time, or whether he’s still there but off the website so he doesn’t get harassed—since the marriage wasn’t popular among the Japanese public. [UPDATE (3/1/2023, 5:19 p.m.): Komuro’s recent appearance in the Japanese news caused me to look him up again, and he’s now back on the Lowenstein Sandler website, identified as an associate based out of the New York office.]

In memoriam:

• Benjamin Civiletti, former U.S. Attorney General (in the Carter Administration) and former chairman of Venable, passed away at 87, from Parkinson’s.

• David W. Brown, a young star partner in the litigation department of Paul, Weiss, passed away at 47. I had the pleasure of working with Dave Brown at the Harvard Crimson years ago, and my recollections are consistent with the description of him in his Paul, Weiss obituary (which does not mention a cause of death).

May they rest in peace.

Judge of the Week: Judge Pinkey Suzanne Carr.

Remember “Who Wants To Be A Millionaire?” How about… “Who Wants To Be A Litigant Before Judge Pinkey Suzanne Carr?

Thankfully, nobody will be appearing before Judge Carr anytime soon. The Ohio Supreme Court immediately suspended the Cleveland-based jurist—from judicial office without pay, and from the practice of law—after a three-member panel of the Board of Professional Conduct issued a scathing, 58-page report concluding that she “ruled her courtroom in a reckless and cavalier manner” and “conducted business in a manner befitting a game show host.”

What was the misconduct? There’s a lot to summarize—more than 100 stipulated incidents, over approximately two years—but here are highlights.