Judicial Notice: January 1, 2021

Notable legal news from the week that was.

Welcome to Original Jurisdiction, a new publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can register to receive updates on this signup page.

Happy new year, and welcome to Original Jurisdiction’s first installment of 2021. I suspect that many of us won’t miss 2020 — but it wasn’t all bad. For me, it was both the worst and the best year of my life, as I explain in this Facebook post.

Now, on to the news.

Lawyer of the Week: Josh Hawley.

On Wednesday, Senator Josh Hawley (R-Mo.) answered President Donald Trump’s call to challenge the results of the 2020 election, announcing that he would object to Congress’s certification of the Electoral College results on January 6. In doing so, Hawley put his fellow Senate Republicans in an awkward and unfortunate position — and incurred the ire of one of them, Senator Ben Sasse (R-Neb.), who condemned Hawley’s act as the equivalent of “point[ing] a loaded gun at the heart of legitimate self-government.”

Senator Susan Collins (R-Me.) was more circumspect, but still critical. Alluding to Hawley’s impressive legal pedigree, she remarked, “I question why he is doing it when the courts have unanimously thrown out the suits that the president’s team have filed for lack of credible evidence. Senator Hawley is a smart attorney who clerked for the Supreme Court, so he clearly understands that.”

Hawley, a possible presidential contender in 2024, is clearly making a bid for Trump’s constituency within the Republican Party. But as a Yale Law School graduate and former law clerk to Chief Justice John Roberts, Hawley surely knows his challenge is doomed. As Trump himself might say, “SAD!” 

Judge of the Week: Chief Justice John G. Roberts Jr.

Yesterday, Chief Justice Roberts released his year-end report on the state of the federal judiciary. Not surprisingly, the Chief focused on the coronavirus pandemic and its impact: “For the past 10 months, it has been all hands on deck for the courts, as our branch of government confronted the Covid-19 pandemic.”

The Chief deserves praise for his strong and steady leadership of both the Supreme Court and the federal judiciary during the coronavirus crisis. And all other judges and court employees, federal and state, merit commendation for keeping the wheels of justice turning, during a period of incredible difficulty. Through numerous adjustments, large and small — from telephonic SCOTUS arguments to trials by Zoom to drive-through naturalization ceremonies — judges and courts have kept up with their important work.

Ruling of the Week: John Doe #1 v. Trump.

Judges: they’re just like us. They don’t particularly enjoy working over the holidays, which is why the past week didn’t bring much in terms of notable new rulings.

But yesterday, when most of us were getting ready to ring in the new year, a divided panel of the Ninth Circuit reinstated the presidential proclamation suspending entry of immigrants who might financially burden the U.S. healthcare system. The panel majority reversed a district court order blocking implementation of the proclamation restricting entry to the United States of immigrants “who cannot demonstrate that they either (1) will acquire qualifying healthcare coverage within 30 days of entry or (2) have the ability to pay for reasonably foreseeable healthcare expenses.”

The ruling reflects what I’d call the “New Ninth.” Traditionally the Ninth Circuit has been viewed as a bastion of the left, home to such legendary liberal lions as Judge Stephen Reinhardt, Judge Harry Pregerson, and Judge Betty Fletcher. But with the appointment of ten new judges, making him the president with the most active judges on the Ninth Circuit, President Trump has reshaped the court he once described on Twitter as “a complete & total disaster” into something much more moderate.

As California appellate attorney Ben Feuer pointed out in the San Francisco Chronicle, conservatives’ days of deriding the court as the “Ninth Circus” or the “Nutty Ninth” may be over. Among active judges, Democratic appointees now barely outnumber Republican appointees, 16-13. And when you include the court’s (rather active) senior judges in the count, treating Judge Richard Tallman as a conservative (he’s a Republican who was appointed by President Bill Clinton as part of a deal with a Republican Senate), the conservatives actually outnumber the liberals, 25-22.

John Doe #1 v. Trump embodies this new reality. The majority opinion was by Judge Daniel P. Collins, a Trump appointee, and joined by Judge Jay Bybee, a George W. Bush appointee. The dissent was by Judge A. Wallace Tashima, a Clinton appointee. If Judge Collins’s seat had still been held by its prior occupant, the notoriously liberal Judge Pregerson, this case would have come out the other way.

Litigation of the Week: Gohmert v. Pence.

I know you’re all sick of election-related litigation — and the good news is that it’s almost over. But we still have a few of these silly suits kicking around the courts.

One of the goofiest is Gohmert v. Pence. Rep. Louie Gohmert (R-Tex.), joined by a number of Arizona Republicans, has filed a lawsuit challenging the constitutionality of the Electoral Control Act of 1887, which governs the upcoming certification by Congress of the results of the Electoral College. Gohmert argues that the Constitution gives Vice President Mike Pence, as president of the Senate, sole discretion to determine the validity of the Electoral College votes.

Here’s the amusing new twist in the litigation: poor Pence doesn’t want this power. Represented by a lawyer from the Department of Justice, John V. Coghlan of the Federal Programs Branch, Vice President Pence argues that the plaintiffs have sued the wrong defendant: “To the extent any of these particular plaintiffs have a judicially cognizable claim, it would be against the Senate and the House of Representatives.”

The case will be decided by Judge Jeremy D. Kernodle (E.D. Tex.). Although appointed by President Trump, Judge Kernodle, like several other Trump appointees, should have no difficulty ruling against the interests of his appointing president. [UPDATE (8:52 p.m.): Well, that was fast! As predicted, Judge Kernodle just dismissed Gohmert v. Pence, ruling that “because neither Congressman Gohmert nor the Nominee-Electors have standing here, the Court is without subject matter jurisdiction.”]

Runner-up: the Florida Supreme Court’s ruling on Thursday that adopts the federal standard for granting summary judgment, as articulated in cases like Celotex. This change was pushed for by business groups hoping to fight what they view as frivolous litigation, and the court’s decision was praised by William Large, president of the business-backed Florida Justice Reform Institute, as “the Holy Grail of lawsuit reform in Florida.” It also reflects a significant rightward shift on the Florida Supreme Court over the past two years, which saw three relatively liberal justices replaced by Republican appointees.

Deal of the Week: Amazon’s acquisition of Wondery.

On Wednesday, Amazon announced its acquisition of Wondery, the prominent podcast producer, for an estimated $300 million. The price tag is modest by the standards of big-ticket M&A, but the buzz factor is high. Wondery has produced multiple hit podcasts, including “Dirty John,” “Dr. Death,” “The Shrink Next Door,” and “Over My Dead Body” — a podcast about a story widely followed within the legal world, the murder of law professor Dan Markel.

Law Firms of the Week: all the firms we said goodbye to in 2020.

Last week was a slow news week. So in the absence of any law firm doing anything exciting, let’s take this opportunity to remember all the firms we lost in 2020.

Law firm merger activity was dampened by the pandemic, but a number of notable mergers still happened — at least 60, according to the law firm consultancy Altman Weil. Some of the law firms that are no longer with us because of a merger, acquisition, or dissolution include Satterlee Stephens (now part of Duane Morris), Greene Radovsky Maloney Share & Hennigh (now part of Fox Rothschild), and Stahl Cowen Crowley Addis (now part of Dickinson Wright).

Lateral Move of the Week: Rebecca Anne Womeldorf, the new reporter of decisions at the U.S. Supreme Court.

The usual major move involves a partner or group of partners lateraling from one firm to another (or Dentons gobbling up another law firm in the middle of the country). But today we’ll go in a different direction.

Congratulations to Rebecca Anne Womeldorf, who was just named the 17th reporter of decisions of the Supreme Court of the United States. She succeeds Christine Luchok Fallon, who retired in September, and will be the second woman to occupy the position. Womeldorf comes to the Court from the Administrative Office of the U.S. Courts, where she served as chief counsel of the Rules Committee Staff.

What does the reporter of decisions do? She prepares a summary of each opinion known as the syllabus — a rather important function, considering how often readers of SCOTUS opinions get our first sense of a ruling from skimming the syllabus — and she also oversees the staff of ten professionals who handle the editing and official publication of the Court’s opinions in U.S. Reports.

Because it requires summarizing Supreme Court opinions with concision and accuracy (and there’s often a trade-off between the two), the role of reporter requires real legal chops — which Womeldorf has, in spades. She’s a graduate of Washington and Lee University School of Law, summa cum laude; a former litigation partner at Hollingsworth LLP, one of D.C.’s leading litigation boutiques; and a former SCOTUS clerk, to Justice Lewis F. Powell Jr. (Ret.) and Justice Anthony M. Kennedy.

Runners-up: more Biglaw alumni bound for the Biden White House. Specifically:

  • Jessica Hertz, a former Jenner & Block partner and now general counsel to the Biden-Harris transition team, will serve as staff secretary;

  • Michael Hochman, a member of the Delaware law firm Monzack Mersky Browder and Hochman, will serve as deputy staff secretary;

  • Kaitlyn Hobbs Demers, a former Covington & Burling associate, will serve as special assistant to the president and chief of staff for the office of legislative affairs; and

  • Josh Hsu, a former Paul Weiss associate, will serve as counsel to Vice President Kamala Harris.

The role of staff secretary, which Justice Brett Kavanaugh held during his service in George W. Bush’s White House, is particularly important. The staff secretary controls the flow of paper into and out of the Oval Office, what makes it to the president’s desk and what doesn’t — which is why the role has been referred to as the president’s “inbox and outbox” or “intellectual umpire.”

Non Sequiturs

  • I’m a big fan of the American Lawyer’s “How I Made Partner” interview series. The latest installment features Mark Musico, 35, a partner in the New York office of Susman Godfrey (and a former law clerk to the late Justice Ruth Bader Ginsburg, who gets a shout-out in the interview).

  • Writing in the National Law Journal, former attorney general Eric Holder comes to the defense of former acting solicitor general Neal Katyal, arguing that criticizing lawyers for defending unpopular clients is not just misguided, but also hazardous to the health of our legal system. Katyal is taking flak for representing Nestle in a suit alleging that Nestle aided and abetted abhorrent child labor practices — allegations that Nestle vociferously denies.

  • Writing in the Financial Times, Professor Laurence Tribe argues that a president can abuse the pardon power in a way that obstructs justice — and if his conduct does, then it should be investigated and prosecuted as obstruction.

  • Speaking of Professor Tribe, J. Michael Luttig — former Fourth Circuit judge, Supreme Court shortlister under George W. Bush, and general counsel of Boeing — makes the case for Tribe as Biden’s attorney general, on Twitter (yes, Luttig is on Twitter; follow him at @JudgeLuttig).

  • Speaking of Twitter, contrary to common criticisms of it as a source of nothing but political invective and Russian disinformation, sometimes it delivers happy news — such as the engagement of Greg Stohr, Supreme Court correspondent for Bloomberg News, and Kimberly E. Atkins, senior writer at the Boston Globe. Congratulations and best wishes to the happy couple, who met in the Supreme Court pressroom, of all places.

  • If you’ll allow me to point you to one more Twitter link, check out the 2021 Supreme Court In-Out List of @SCOTUSPlaces (which features a nice shout-out to original jurisdiction).

  • One week ago, on Christmas Day, a Connecticut attorney by the name of John Liquori shot his 55-year-old wife Cindy to death, then killed himself. The news came as a shock to those who knew Liquori, a solo divorce attorney described by friends and colleagues as “quiet and unassuming,” “mild-mannered and even-keeled,” and friendly and generous with his time. Fellow solo practitioner Mary Bergamini, who spoke with Liquori on four separate occasions the day before the murder-suicide, told Law.com that he “seemed very anxious” and was “feeling overwhelmed” by challenges raised by the Covid-19 pandemic.

During these trying times, many of us are experiencing high levels of depression and anxiety, which affect lawyers at a disproportionate rate. If you find yourself in need of help, please call the National Suicide Prevention Lifeline (1-800-273-8255) or a lawyer assistance program in your state.

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Once again, happy new year to all.

Thanks for reading Original Jurisdiction, a new publication by me, David Lat. You can learn more about Original Jurisdiction on its About page, you can reach me by email at davidlat@substack.com, and you can share this post or subscribe to Original Jurisdiction using the buttons below.