Judicial Notice (05.12.25): Checks And Balances
The passing of Justice Souter, the nixing of a controversial nomination, the departure of a $15 million partner, and a talent ‘exodus’ from a storied firm.
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To all the moms out there, I hope you had a delightful Mother’s Day. Our family is fortunate enough to live near both my parents and my parents-in-law, so we were able to enjoy a celebratory brunch with both my mom and Zach’s mom. Having experienced firsthand the many benefits of living near my mother and mother-in-law, I understand why the typical American adult lives only 18 miles from their mom.
Zach and I have some exciting news to share. And no, we’re definitely not having a third kid—we’re not crazy.1
On May 19, Zach will be joining SCOTUSblog as executive editor. Dispatch Media recently acquired SCOTUSblog, and as Dispatch CEO Steve Hayes explained, it’s investing in SCOTUSblog “to ensure that it remains the go-to authority on the Supreme Court.” Hiring Zach as executive editor, a brand-new position, is part of that investment—and more hires will be announced soon. (The search for a managing editor remains open; you can read the job description and apply here.)
In addition to acquiring SCOTUSblog, The Dispatch is expanding its legal coverage by partnering with yours truly and Original Jurisdiction. Part of that collaboration involves me appearing more frequently on The Dispatch’s long-running legal podcast, Advisory Opinions—as I did last Tuesday, when I discussed St. Isidore of Seville Catholic Virtual School v. Drummond, the case out of Oklahoma about a proposed Catholic charter school, with Sarah Isgur and Amy Howe.
Now, on to the news—with apologies for the tardiness of this missive, as a result of a rather challenging weekend in our household (I’ll spare you the details). Please note that this roundup covers news through yesterday, Sunday the 11th; news from today will be included in the next edition of Judicial Notice.
Lawyers of the Week: Ed Martin and Jeanine Pirro.
On Thursday, Donald Trump pulled Ed Martin, a Republican political operative from Missouri with no prosecutorial experience, as his nominee to serve as U.S. attorney for the District of Columbia. Since taking over as acting U.S. attorney in January, Martin drew criticism for threatening to investigate Democrats, journalists, academic institutions (such as Georgetown Law), and other targets of the Trump administration, while at the same time firing and demoting career prosecutors who handled cases involving the president or his allies (e.g., January 6 prosecutions).
The withdrawal of the Martin nomination came after Senator Thom Tillis (R-N.C.) announced his opposition on Tuesday—“a good exercise of the Senate’s advise-and-consent power,” in the words of the conservative Wall Street Journal editorial board (gift link). Opposition from Tillis, a member of the Senate Judiciary Committee, suggested that getting Martin confirmed would be difficult, if not impossible.
As Trump told reporters, “I can only lift that little phone so many times of the day. It would be hard.” The collapse of Martin’s nomination raises the possibility that even Senate Republicans—who have voted for pretty much all of Trump’s nominees, including some very controversial ones—could have their limits. Might this be the start of a more normal relationship between Congress and the president, in which Congress serves as a significant check on presidential power?
As for Martin, Trump named him an associate deputy attorney general and pardon attorney at the U.S. Department of Justice (DOJ), which doesn’t require Senate confirmation. He’ll also lead the DOJ’s “Weaponization Working Group”—a body tasked with looking into “abuses of the criminal justice process” by local and federal law enforcement officers, which Trump critics fear could turn into a vehicle for exacting retribution against the president’s foes.
To replace Martin as interim U.S. attorney, Trump selected a longtime, outspoken ally, Fox News host Jeanine Pirro. Unlike Martin, Pirro has some prosecutorial experience, having served as the elected district attorney in Westchester County, New York. But that was almost 20 years ago—and today Pirro is best-known as a television personality who has made numerous controversial comments, including false statements about the 2020 presidential election.
As explained by Charlie Savage of The New York Times, it’s unclear whether Trump has the legal authority to name a second interim U.S. attorney, having already selected Ed Martin—who served for almost 120 days, the period of time provided for under federal law. So once again, Trump is testing the boundaries of his executive authority. (For more on that subject, see this Times op-ed (gift link) by Professor Jack Goldsmith, an expert on presidential power.)
Picking Pirro as interim U.S. attorney doesn’t mean he’ll select her as the long-term, Senate-confirmed U.S. attorney—but according to Kaitlan Collins of CNN, it’s “likely” that Pirro will eventually be nominated. If Pirro winds up getting nominated, some might wonder why Trump didn’t instead select an experienced, well-regarded career prosecutor without a history of incendiary statements—like Jessie Liu, U.S. attorney for D.C. during Trump’s first administration, who was confirmed by voice vote. But Liu over time took flak from Trumpworld for showing too much prosecutorial independence, not doing enough to protect the president’s allies (like Roger Stone) and prosecute his enemies (like former FBI official Andrew McCabe). So this time around, Trump will probably want a loyalist like Pirro in the position.
Other lawyers in the news:
Speaking of interim U.S. attorneys, Trump named former judge Joseph Nocella Jr. to serve in that role for the Eastern District of New York (aka Brooklyn), just as he named Jay Clayton as interim U.S. attorney for the Southern District of New York (aka Manhattan) last month. Senate Minority Leader Chuck Schumer (D-N.Y.) is currently blocking the nominations of Nocella and Clayton to serve as Senate-confirmed U.S. attorneys, to protest Trump’s handling of DOJ issues.
Speaking of Jay Clayton, he brought in a former Sullivan & Cromwell colleague, Amanda Houle, to lead the S.D.N.Y.’s criminal division—historically a powerful post, but maybe less powerful than it has been in the past (given the Trump administration’s effort to reduce the S.D.N.Y.’s independence).
There’s been significant turnover in the S.D.N.Y. U.S. Attorney’s Office over the past few months—but probably not as much as there has been down in D.C., at Main Justice. In the DOJ Civil Rights Division, typically staffed with around 380 lawyers, more than two-thirds of the lawyers have departed or been reassigned since the start of the Trump administration.
In other nominations news, the Trump administration is withdrawing Jonathan McKernan as its pick to lead the Consumer Financial Protection Bureau (CFPB), instead nominating him to serve as the Treasury Department’s undersecretary of domestic finance. Meanwhile, Trump nominated assistant U.S. attorney Brittany Bull Panuccio to the Equal Employment Opportunity Commission (EEOC), which would give Republicans a 2-1 majority at the EEOC if she’s confirmed.
Following in the footsteps of Law Firm Partners United, a group of in-house lawyers have launched a LinkedIn Group called General Counsels United (GCU), consisting of GCs opposed to “executive branch attacks on lawyers and law firms”—and around two weeks in, GCU already has more than 500 members.
Former Homeland Security Secretary Jeh Johnson is leaving Paul Weiss in order to “devote significant time and energy” to Columbia University, his alma mater (for law school), where he was just elected co-chair of the Board of Trustees. Both Paul Weiss and Columbia have been targeted by—and have tried to cut deals with—the Trump administration, leading Kathryn Rubino of Above the Law to suggest that Johnson might be going from the proverbial frying pan into the fire. Although Johnson’s departure from Paul Weiss comes a few weeks after the firm’s controversial settlement with the administration, there’s no indication that he’s resigning in protest of it; Johnson made no reference to the deal in the statement explaining his move. (To learn more about the fascinating career of Jeh (pronounced “Jay”) Johnson, check out our podcast conversation.)
Elsewhere in academia, the University of Chicago Law School announced its new dean: Professor Adam Chilton, who will take over on July 1 from Dean Thomas Miles (returning to the faculty, after a decade of decanal service).
In memoriam:
Sybil Shainwald, a legal crusader for women who were harmed by defective drugs and medical devices, passed away at 96.
Ronald “Ronny” Krist, another prominent plaintiffs’ lawyer who litigated landmark products-liability cases, passed away at 88.
Stephen Harmelin, former co-chair of Dilworth Paxson and a prominent figure in the Philadelphia legal community, passed away at 85.
Joshua Pruzansky, a former president of the New York State Bar Association and longtime lawyer on Long Island, passed away, also at 85.
May they rest in peace.
Judge of the Week: Justice David Souter.
On Thursday, Justice David H. Souter, who served on the U.S. Supreme Court from 1990 to 2009, passed away at 85. According to the Court—which announced the news on Friday, without specifying a cause—the justice died “peacefully” at home. Numerous outlets wrote about Justice Souter’s passing (and I commend you to Howard Bashman’s How Appealing for a comprehensive collection of coverage).
As noted in Amy Howe’s obituary for SCOTUSblog, David Hackett Souter was born in 1939 in Massachusetts and went on to graduate from Harvard College, Oxford (as a Rhodes Scholar), and Harvard Law. After a two-year stint in private practice in New Hampshire, he went into state government, serving as New Hampshire attorney general, a trial judge in the Granite State, and a justice on the New Hampshire Supreme Court. In May 1990, Souter was unanimously confirmed to the First Circuit, but he was on that court for a hot second: in July 1990, before issuing a single circuit opinion, the 50-year-old jurist was nominated to the U.S. Supreme Court.
Although he was nominated by a Republican, President George H.W. Bush, and confirmed 90-9, with unanimous Republican support, Justice Souter disappointed conservatives—bigly. Only two years after his confirmation, he voted against overruling Roe v. Wade in Planned Parenthood v. Casey. In fact, over his almost two decades on the Court, he voted for the liberal side more than two-thirds of the time in divided decisions and almost 80 percent of the time in the biggest cases, according to data compiled by Professor Lee Epstein.
Justice Souter’s leftward tilt played a major role in changing the SCOTUS confirmation process. As Tiana Headley and Kimberly Robinson explained in Bloomberg Law, Souter’s “betrayal” of the right “made way for the mantra ‘No More Souters,’ and efforts by Republican administrations to vet potential nominees more rigorously moving forward. They sought out nominees familiar in Federalist Society circles and with track records of service in Republican administrations and conservative rulings as appellate judges.”
But was Souter’s jurisprudence really a “betrayal”? As Linda Greenhouse suggested in her Times obituary for Justice Souter, his accusers “either failed to pay attention to his testimony before the Senate Judiciary Committee during his confirmation hearing in September 1990, or chose not to believe what they heard.”
When Senator Chuck Grassley (R-Iowa) asked then-Judge Souter of the First Circuit for his views about “judicial activism” and “government by the judiciary,” that was Souter’s cue to rail against out-of-control, liberal-activist judges. But Souter instead responded that “courts must accept their own responsibility for making a just society,” adding that “if the other branches of government do not deal with [a major social problem], ultimately it does and must land before the bench of the judiciary.”
Then-Judge Souter also had warm words for the liberal lion he was nominated to replace, Justice William J. Brennan Jr. When asked about Justice Brennan, Souter could have diplomatically praised Brennan’s many years of service to the judiciary, while stating that he (Souter) would “be his own person” on the Court. Instead, Souter lauded Brennan as “one of the most fearlessly principled guardians of the American Constitution that it has ever had and ever will have.”
Whether or not their reaction was justified, conservatives did feel betrayed by Justice Souter. They tightened up the process for vetting the ideological bona fides of Supreme Court nominees—as did liberals, to avoid the problem from the other side—and today the Supreme Court, as well as the federal judiciary more generally, is far more polarized. Per Jeffrey Toobin, writing in The Times:
There was a time when moderate or even liberal Republicans like Souter held great sway on the court. There was John Marshall Harlan II in the 1950s, Potter Stewart in the ’60s and, in later years, Lewis Powell and John Paul Stevens, along with Blackmun, O’Connor and Kennedy, as well as Souter. That kind of moderate is gone now—gone from the Supreme Court and, it appears, the surface of the earth. Sadly, Souter’s wise jurisprudence disappeared long before the man himself left us.
Or Joe Patrice argued in Above the Law, “David Souter is a reminder of a time when the Supreme Court was less polarized and justices were not strictly vetted for ideological purity. He should be a model for judges everywhere.”
For more personal remembrances of Justice Souter, check out Adam Liptak’s piece for The Times (gift link), based on interviews with several former Souter clerks:2
Dean Heather Gerken, Yale Law School: “Justice Souter was the Supreme Court’s greatest common-law judge. He possessed the humility and humanity necessary to eschew grand generalities and focus on the real problems of real people.”
Judge Kevin Newsom (11th Cir.): although Justice Souter knew that “he and I saw law and judging differently, he never wanted to hear what I thought he would think—he wanted to know, in all honesty, what I thought.”
Judge Jesse Furman (S.D.N.Y.): “Those of us who had the privilege to spend a year with Justice Souter came away better human beings for it, and those of us who went on to become judges ourselves are certainly better judges for it.”
Professor Peter Spiro, Temple University Beasley School of Law: “He was old-school in the best possible way—respectful, engaged, unpretentious. There was this misconception of him as a recluse, but he was extremely gregarious, had a sharp sense of humor, loved his friends and colleagues. But he did not care for Washington and its trappings.”
Or consider the words of Professor Noah Feldman of Harvard Law, another former DHS clerk, writing in Bloomberg Law:
Clerking for Souter was the privilege of a lifetime. His kindness, his charm, and his elegance of character were all palpable beneath the formidable facade of New England reserve. Sitting in his office exchanging ideas and stories with him, as the light faltered, I knew, as I have rarely known anything before or since, that I was in a chain of transmission that went back to the Puritan fathers who were his literal ancestors and my metaphorical ones. He was the best and wisest man I have ever known.
I met Justice Souter once, in 2008, while serving as an usher at the wedding of Derek Ho—a former Souter clerk, now a partner at Kellogg Hansen—and Maria Glover, now a professor at Georgetown Law. The ushers knew Justice Souter would be in attendance, with some wondering who would get the privilege of showing the justice to his pew. But as the #1 fanboy of the federal judiciary, I had no doubt it would be me (sorry for that elbow to your ribcage, Charles—I hope it has healed by now).
I must confess that during his time on the Court, I didn’t fully appreciate the low-key Justice Souter. He wasn’t a flashy writer, like Justice Scalia. He didn’t make public appearances and say controversial things, like Justice Ginsburg. As journalists like to say, he didn’t “make for good copy”; he was kinda… boring.
But over the years, I acquired an appreciation for Justice Souter’s self-possession, quiet dignity, and apparent lack of a need for public attention and approval. While I don’t know that I’d want an entire bench full of Souters—it would certainly make my job a lot harder—I’m glad that there was at least one. Justice Souter, rest in peace.
Other judges in the news:
Justice Souter was famously reticent off the bench, but today’s justices are far chattier. At an event to commemorate the 125th anniversary of the U.S. District Court for the Western District of New York—which includes Buffalo, the city where he was born—Chief Justice John Roberts defended judicial independence, once again criticizing the use of impeachment to “register disagreement with a decision.” (He made the same point about impeachment in a public statement he issued last month.)
Not to be outdone, Justice Sonia Sotomayor told attendees at an event for the American Bar Association (ABA) that the job of lawyers “is to stand up for people who can’t do it themselves”; that “right now, we can’t lose the battles we are facing”; and that “we need trained and passionate and committed lawyers to fight this fight.” She didn’t mention the adversary in “this fight,” but one can guess.
Lower-court judges have plenty of opinions too. In a wide-ranging interview with James Taranto of The Wall Street Journal (gift link), Judge James Ho of the Fifth Circuit—a top SCOTUS contender in the Trump administration—discussed the sweeping powers of district judges, universal injunctions, and his clerk-hiring boycott. (Fun fact: if you recall the fine print on the boycott, it applies only to students who matriculated at YLS after “The Troubles”; as he told Taranto, Judge Ho actually has a Yalie in chambers next year.)
And former judges are speaking out too—150 of them, signing a letter to Attorney General Pam Bondi “condemn[ing] the Trump Administration’s attacks on the judiciary, including its recent arrest of Milwaukee County Circuit Court Judge Hannah Dugan in her courthouse.” The effort was spearheaded by retired judges Nancy Gertner (D. Mass.) and J. Michael Luttig (4th Cir.).
Sheriff Shawn “Mickey” Stines, accused of murdering Kentucky 47th Judicial District Judge Kevin Mullins, plans to mount an insanity defense. According to Stines’s lawyer, Jeremy Bartley, Stines was experiencing intense paranoia that his family was in danger in the period leading up to the shooting, as a result of a civil lawsuit in which he was named and deposed. Bartley denies the shooting had anything to do with a rumored relationship between Judge Mullins and Stines’s teenage daughter.
In nominations news, the Trump administration officially announced its first round of judicial picks. In addition to Whitney Hermandorfer, selected for the Sixth Circuit (and discussed in these pages last week), the president nominated four folks to serve on the Eastern District of Missouri: Joshua Divine, solicitor general of Missouri; Maria Lanahan, principal deputy solicitor general of Missouri; Judge Cristian Stevens, a member of the Missouri Court of Appeals since 2021; and assistant U.S. attorney Zachary Bluestone. Divine, who clerked for Justice Clarence Thomas and served as chief counsel to Senator Josh Hawley (R-Mo.), is nominated to a seat assigned to both the Eastern and Western Districts of Missouri.
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