Judicial Notice (12.09.23): Read The Room

Witness prep for university presidents, the Term's first SCOTUS opinion, a real Hunter Biden indictment, and other legal news from the week that was.

Yes, this is the photo of U. Penn. president Liz Magill that every photo editor in America is using (photo by Kevin Dietsch via Getty Images).

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It’s the most wonderful time of the year, at least for extroverts like me (less so for introverts like my husband Zach). I’ve attended four holiday parties in the past four days, and I have another four coming up in the week ahead—including two for former workplaces of mine, Above the Law and the U.S. Attorney’s Office (D.N.J.). I look forward to seeing some of you at either or both gatherings.

Now, on to the news.

Lawyer of the Week: Liz Magill.

On Saturday, after Tuesday’s infamous congressional hearing about antisemitism on American university campuses—so disastrous it got turned into a Saturday Night Live cold open—Liz Magill announced her resignation as president of the University of Pennsylvania. Her departure doesn’t come as a shock since she was already in hot water going into the hearing, with Penn under an Education Department investigation for antisemitism and major donors pulling gifts from the university. For example, Stone Ridge Holdings, the asset-management company led by Penn alum Ross Stevens, sent a letter to Penn (via Davis Polk) threatening to yank a $100 million gift—but said it might reconsider “if, and when, there is a new University President in place.”

Magill will remain in office until an interim president is selected. She will also remain on the faculty of Penn Law, where she is a tenured professor of law.

Yes, that’s right—Magill is a lawyer, with impressive credentials. She graduated from UVA Law and clerked for a conservative legal luminary, Judge J. Harvie Wilkinson (4th Cir.), and a liberal legal luminary, the late Justice Ruth Bader Ginsburg. Before taking the helm at Penn, she served as dean of Stanford Law School. But her professorial pedigree might have been part of the problem, as she offered dry, academic answers to passionate, pointed questioning from Representative Elise Stefanik (R-N.Y.).

And her legal background might have contributed to her difficulties as well. She offered bloodless, legalistic responses to questions that did not lend themselves to nuance. While there’s a case to be made that Magill (and fellow presidents Claudine Gay of Harvard and Sally Kornbluth of MIT) were partially right on substance, David French correctly noted that their invocation of free-speech principles suffered from a hypocrisy problem. For years, their institutions have aggressively cracked down on alleged “hate speech” from the right, but now that the vitriol is coming from the left, they wrap themselves in the First Amendment. Not a great look.

There’s an important lesson here for lawyers: sometimes you need to speak not from the head, but from the heart. The law as a profession privileges intellect, but what was called for here was emotion. It’s also important to read the room—and if your approach isn’t working, recalibrate in real time. (In Magill’s defense, some of the blame may lie with the law firm that prepped her, WilmerHale—discussed infra as Law Firm of the Week.)

Judge of the Week: Justice Amy Coney Barrett.

When I interviewed her last year about one of her mentors, the late Judge Laurence Silberman, Justice Amy Coney Barrett described herself to me as “hyper-efficient.” So we shouldn’t be surprised to see Justice Barrett as author of the first signed merits opinion of the Term, for the second year in a row. (Interestingly enough, the justice she replaced, the late Justice Ruth Bader Ginsburg, was also often the author of the first opinion during her time on the Court.)