Judicial Notice (08.24.25): 2,400 Hours—Again?
Another Biglaw firm with a hefty hours expectation, a pair of wins for Donald Trump, a loss for Judge Pauline Newman, and the passing of a beloved jurist.
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I spent much of last week by myself, holed up in a charming hotel in the picturesque town of Hudson, New York, trying to get some non-newsletter writing done. I’m happy to report that I made some progress (and I thank Zach, his parents, and my parents for watching the kids while I was away). If you find yourself not progressing on a project, sometimes a period of forced focus can be just what you need to jumpstart things. Here’s hoping I can sustain my new momentum—especially after Labor Day, when the busy-ness of fall kicks in.
In last weekend’s Judicial Notice, I discussed former Kentucky county clerk Kim Davis’s certiorari petition in Davis v. Ermold, asking the U.S. Supreme Court to overrule Obergefell v. Hodges—i.e., to do to same-sex marriage what Dobbs did to abortion. I explained why I don’t think Davis poses a threat to Obergefell—and if you need more reassurance on that front, I recommend Elie Honig’s latest New York Magazine column (in which I’m quoted).
Now, on to the news.
Lawyer of the Week: D. John Sauer.
Last Thursday was a big day for D. John Sauer. In his current job as Solicitor General of the United States, he prevailed in National Institutes of Health v. American Public Health Association, an emergency appeal he brought to the Supreme Court on behalf of the Trump administration (discussed below as Litigation of the Week).
Because NIH v. APHA was a case on the half-enchilada docket, there was no oral argument. But back when he was still in private practice, Sauer had handled the oral argument in People of the State of New York v. Trump, Trump’s appeal of the almost half-billion-dollar judgment in the civil-fraud case filed by New York Attorney General Letitia “Tish” James.
At the oral argument before New York’s Appellate Division, First Department, in September 2024, the panel of five judges expressed some skepticism of the government’s case—so perhaps it shouldn’t be a surprise that Sauer scored a win here as well (discussed below as Ruling of the Week). Taking into account these latest victories and Sauer’s success in Trump v. United States aka the immunity case, Sauer has notched some significant victories for Donald Trump (although Sauer did not prevail in the first of two Second Circuit appeals brought by Trump in his litigation against writer E. Jean Carroll; the second appeal is pending).
Other lawyers in the news:
Last week brought good news for another prominent lawyer at the U.S. Department of Justice (DOJ), Jay Clayton: the judges of the Southern District of New York appointed him as U.S. attorney for the S.D.N.Y., a role he’d been discharging on an interim basis.
On the other side of the Hudson River, the news was less good for Alina Habba, who purports to be the acting U.S. attorney for the District of New Jersey. Chief Judge Matthew Brann (M.D. Pa.), sitting by designation in the D.N.J., issued a 77-page opinion concluding as follows: “Faced with the question of whether Ms. Habba is lawfully performing the functions and duties of the office of the United States Attorney for the District of New Jersey, I conclude that she is not.”
Another telegenic Trump defender turned U.S. attorney, Jeanine Pirro—who was, unlike Habba, actually confirmed by the Senate—received a surprisingly positive profile in The New York Times (gift link). According to reporter Glenn Thrush, Pirro “has defied expectations, common among staff before she arrived, that she would not take the job seriously, or spend her days kibbitzing at the White House”—and instead “has been working long hours, fortified by candy and early-morning workouts,” while circulating freely among the lawyers and staff.
In other U.S. attorney news, Todd Gilbert abruptly resigned as interim U.S. attorney for the Western District of Virginia. He was replaced by his first assistant, Robert Tracci—who has been runner-up to Gilbert for the interim position.
“I’ll have what she’s having”—namely, a top job at the Securities and Exchange Commission (SEC). Margaret “Meg” Ryan—not the When Harry Met Sally actress, but the senior judge on the U.S. Court of Appeals for the Armed Forces—is the new director of the SEC’s powerful Division of Enforcement.
In memoriam: Theodore “Ted” Friedman—a prominent personal-injury lawyer who was disbarred for unethical conduct, before winning reinstatement to the bar and returning to practice at age 79—passed away at 94. As noted in his New York Times obituary (gift link), his wife Eve Preminger, a former judge on New York Surrogate’s Court, passed away recently as well. May they rest in peace.
Judge of the Week: Judge Pauline Newman.
On Friday, a unanimous panel of the D.C. Circuit affirmed the dismissal of the lawsuit filed by Judge Pauline Newman, 98, to challenge her suspension from the Federal Circuit. That suspension has kept Judge Newman off the bench for almost two years, with a third year looking likely—so she’s been unable to exercise the judicial power of the United States, i.e., hear and decide cases, even though she hasn’t been impeached. The ruling received coverage from multiple news outlets (collected by Howard Bashman at How Appealing).
I’ve written before—and critically—about the Federal Circuit’s treatment of Judge Newman, so I won’t belabor the subject. I’ll just say that, having read Judge Bradley Garcia’s opinion, I agree with what experts like Professor Arthur Hellman and former federal judge Jeremy Fogel (N.D. Cal.) told Law360: there’s some encouraging language for Judge Newman in the ruling.
Judge Garcia held that Judge Newman’s lawsuit was barred by a 2011 ruling of the D.C. Circuit in a case called McBryde, which the three-judge panel was powerless to overrule. But he seemed to throw quite a bit of shade on it, writing that “[t]he seeming absence of a judicial forum to address Newman’s as-applied constitutional claims itself raises constitutional concerns”—and that she’s advanced “substantial arguments” that her suspension “threatens the principle of judicial independence and may violate the separation of powers.”
So I agree with Professor Hellman that the panel opinion in Newman v. Moore “is about as clear an invitation by a panel to the losing side to file a petition for rehearing en banc as I’ve ever seen.” And I suspect that Judge Newman’s indefatigable legal team of lawyers at the New Civil Liberties Alliance, including Greg Dolin and John Vecchione, will accept that invitation.
But it would be much better if the parties could just work something out—such as allowing Judge Newman to return to the bench on a provisional or probationary basis, perhaps with a reduced caseload. The judges of the Federal Circuit are extremely smart—remember, this is the appeals court that hears patent cases—and they’re also very nice (at least most of the time). Can’t they all just get along?
Other judges in the news:
It’s pretty ridiculous that Judge Newman stands accused of “misconduct.” For allegations of real misconduct, consider the case against former California state-court judge Adolfo Corona, who’s accused of sexually assaulting a judicial assistant and trying to cover it up—in a five-count federal indictment.
In other news of judges (allegedly) behaving badly, a deceased Kentucky state-court judge, Kevin Mullins—who was shot and killed in chambers by his former bailiff, a sheriff named Shawn “Mickey” Stines—reportedly participated in a sex ring, in which young women performed sexual favors to get out of trouble.
Last week, I mentioned a noteworthy debate about dissentals between two judges on the Sixth Circuit. Out on the Ninth Circuit, dissentals are a longstanding tradition—and Judge Lawrence VanDyke filed a customarily spicy one in Lake v. Gates, an election-law dispute pitting Kari Lake (yes, that Kari Lake) against Bill Gates (no, not the gazillionaire , but the former Maricopa County election official). The VanDyke dissental was joined by five other Republican appointees (including Judge Patrick Bumatay, who wrote the dissent from the panel opinion).
In nominations news, the Trump administration announced four new judicial picks, all for district courts in North Carolina: David Bragdon, chief of appeals in the U.S. Attorney’s Office (M.D.N.C.); his colleague, assistant U.S. attorney Lindsey Freeman (M.D.N.C.); Matthew Orso, a partner at Troutman Pepper Locke (W.D.N.C.); and Magistrate Judge Susan C. Rodriguez (W.D.N.C.). On Twitter, Professor Rob Luther, who was heavily involved in judicial selection in Trump’s first term, praised the quartet as “absolutely outstanding.”
In memoriam: Judge Frank Caprio Sr.—a municipal-court judge in Providence, Rhode Island, who starred in a reality show called Caught in Providence—passed away at 88. For more about Judge Caprio, a beloved figure in Rhode Island and beyond, please see my recent story, Traffic Court: A Prosecutor’s And A Professor’s Perspectives (a follow-up to State Of New Jersey v. David B. Lat: My Trip To Traffic Court—I wish I had Judge Caprio as my judge).
Job of the Week: an opportunity for a tax or executive-compensation associate in New York City.
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