Judicial Notice (11.17.24): ‘Nobody Knows Anything’

Trump’s DOJ picks, FedSoc drama, Milbank bonuses, and a major Biglaw merger.

Representative Matt Gaetz (R-Fla.), speaking at the 2024 Republican National Convention (photo by Chip Somodevilla via Getty Images).

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I just returned from a few days in Washington, D.C., which I find delightful (an assessment my husband Zach does not share). On Wednesday night, I attended the 2024 Summit of the Society for the Rule of Law—which is, as previously discussed in these pages, “an organization of conservative lawyers committed to the foundational constitutional principles we once all agreed upon,” including “the primacy of American democracy, the sanctity of the Constitution, and the rule of law.” Many of the Society’s members are staunch opponents of president-elect Donald Trump, so as you might have expected in light of the 2024 election results, the atmosphere was funereal. And you don’t have to take my word for it; here’s video of the proceedings.

From Thursday to Saturday, I attended the Federalist Society’s 2024 National Lawyers Convention, where the mood was far more upbeat. I spoke on a panel about federal judicial selections in the next administration, featuring Michael Fragoso, chief counsel for nominations at the Senate Judiciary Committee; Professor Robert Luther III, an alum of the first Trump White House who now teaches at Scalia Law; and Professor Carl Tobias, a well-known scholar of the judiciary who teaches at Richmond Law.

That wasn’t my only time talking about judicial nominations. I also joined Jessie Kamens on Bloomberg Law’s On the Merits podcast, where we discussed how president-elect Donald Trump might reshape the federal judiciary—again—during his second term in the White House.

Speaking of interesting things you can listen to online, I have a quick correction to something I mentioned in last week’s Judicial Notice. “The AI Revolution in Legal Writing,” a webinar featuring legal-writing guru Ross Guberman and yours truly, is taking place at 1:30 p.m. (ET) this Wednesday, November 20 (not November 30—that was a typo). The webinar is free, and all you need to do is register.

Now, on to the news.

Lawyer of the Week: Matt Gaetz.

Last week, Trump announced several picks for important legal roles in his administration:

• For White House counsel, a key legal adviser to the president: William McGinley. A well-known election and political lawyer and current partner at Holtzman Vogel, McGinley graduated from GW Law and was previously a partner at Jones Day and Patton Boggs (now Squire Patton Boggs). He served as White House cabinet secretary in the first Trump administration.

• For deputy attorney general (DAG), the #2 official at the U.S. Department of Justice (DOJ): Todd Blanche, 50. A Brooklyn Law graduate, former law clerk in the Eastern District of New York (E.D.N.Y.) and Southern District of New York (S.D.N.Y.), former assistant U.S. attorney in the S.D.N.Y., and former partner at Cadwalader, Blanche defended Trump in his Manhattan hush-money case (which Justice Juan Merchan has put on pause until November 19, as the parties figure out how to proceed after Trump’s election).

• For principal associate deputy attorney general, right hand to the DAG: Emil Bove, 43. A Georgetown Law graduate, former S.D.N.Y. and Second Circuit law clerk, and former assistant U.S. attorney in the S.D.N.Y., Bove worked with Blanche in defending Trump in the hush-money case.

• For U.S. solicitor general, the federal government’s leading advocate before the U.S. Supreme Court: John Sauer, 50. A Rhodes Scholar, Harvard Law graduate, former law clerk to the late Justice Scalia, and former Missouri solicitor general, Sauer successfully represented Trump before the Supreme Court in Trump v. United States (aka the immunity case).

• For U.S. attorney for the S.D.N.Y., a leading prosecutor of white-collar crime: Jay Clayton, 58. A Penn Law graduate and former law clerk in the Eastern District of Pennsylvania, Clayton practiced as a transactional lawyer for more than 20 years at Sullivan & Cromwell, then served as chair of the Securities and Exchange Commission (SEC) during Trump’s first term.

One can certainly come up with criticisms of these selections. The DAG’s office is in charge of running the DOJ on a day-to-day basis, and even though Blanche and Bove have extensive experience as defense lawyers and prosecutors, they don’t have a ton of management experience. Although Clayton was a highly regarded M&A lawyer at S&C and successful SEC chair, he lacks prosecutorial experience. And Trump does seem to be relying heavily on—and rewarding—his personal lawyers. But they’re all eminently respectable, mainstream picks, and I expect them to be confirmed by the Senate (except Bill McGinley, whose position does not require confirmation).

The same can’t be said for Trump’s pick for the most important legal position in his administration, U.S. attorney general: Representative Matt Gaetz (R-Fla.). His nomination came as a shock to many—and underscored for me that if there’s one thing you can predict about Trump, it’s unpredictability. As screenwriter William Goldman famously quipped—about Hollywood, but it applies just as well to Trumpworld—”Nobody knows anything.”

Gaetz, 42, graduated from William & Mary Law School in 2007. He was admitted to the Florida bar in 2008 (and briefly suspended in 2021, for failing to pay his bar dues). He practiced for around two years at AnchorsGordon, a small Florida law firm, where his matters included representing a homeowners’ association (in a dispute over a volleyball net) and suing an old lady (who owed money to his father’s home-care firm).

And that’s about the extent of Gaetz’s legal experience, which Law360 charitably describes as “thin.” If Gaetz’s legal résumé is “thin,” then Kate Moss circa 1996 was “zaftig.” Say what you will about Trump’s prior AGs, Jeff Sessions and Bill Barr, but at least they were qualified: Sessions served as a U.S. attorney (S.D. Ala.) and Alabama state attorney general before entering the U.S. Senate, and Barr was AG, DAG, and head of the Office of Legal Counsel in the George H.W. Bush administration.

Gaetz’s main experience with the Justice Department appears to be… as a target. For two years, the DOJ investigated sex-trafficking allegations against him, including a claim that he had sex with a 17-year-old. Last year, the Department ended its investigation without charges. But the House Ethics Committee then opened its own investigation, which included additional alleged misconduct—e.g., reports that he showed nude photos of women to other members on the floor of the House, used illegal drugs, and misused campaign funds for personal purposes.

After Trump announced his AG nomination, Gaetz resigned from the House—which conveniently stripped the Ethics Committee of jurisdiction to investigate him. Could the Committee still issue its report on Gaetz? There’s disagreement among Republicans on Capitol Hill: Speaker Mike Johnson (R-La.) opposes releasing the report, saying it would be a “breach of protocol,” while Senator John Cornyn (R-Tex.) believes that he and other members of the Senate Judiciary Committee should be able to see it, as they consider Gaetz’s nomination.

Will Gaetz win confirmation? That was the question on everyone’s lips at the FedSoc conference, and the majority view was no. And nobody I spoke with wanted him to be confirmed—even at a convention of right-of-center lawyers, a fair (and growing) number of them Trump supporters. Gaetz is opposed even by conservative outlets like the editorial page of The Wall Street Journal (via Howard Bashman of How Appealing, who’s been diligently following the flood of negative coverage).

I agree that Gaetz’s chances of confirmation are slim, but I don’t think they’re zero. According to reporting by CNN, Trump strongly supports Gaetz—i.e., he’s not a stalking horse, nominated to get shot down and make the next AG pick look better by comparison. So Trump might make a real effort to push him through—and nobody goes broke betting that Senate Republicans will kowtow to Trump.

Here’s my advice to Democrats on the Senate Judiciary Committee. Don’t waste your time on speechifying, which will just cause Gaetz to speechify back—something he’s actually capable of. Instead, ask him rapid-fire questions about substantive law, à la Senator John Kennedy questioning judicial nominees, and let Gaetz self-asphyxiate (which he might get off on, but it’s your best shot at torpedoing his nomination).

And maybe, just for funsies, walk him through the many times he has insulted Republican senators—senators whose votes he now needs. Republican senators who vote in favor of Gaetz should be ashamed—so they deserve to be reminded of how he has attacked and mocked them over the years, right before they cast their “yea” votes.

Other lawyers in the news:

• Jonathan Youngwood of Simpson Thacher and Heather Weaver of the ACLU won Am Law’s Litigator of the Week honors, after persuading Judge John W. deGravelles (M.D. La.) to block a Louisiana state law requiring the Ten Commandments to be displayed in every classroom.

• A Susman Godfrey team led by star trial lawyer Bill Carmody helped Baltimore secure a $266 million award from two drug companies, after a jury concluded that their distribution of prescription opioids constituted “unreasonable conduct” that inflicted significant harm on the city.

• A pro bono team from Patterson Belknap Webb & Tyler, working with lawyers from the Center for Constitutional Rights, obtained a $42 million jury verdict for three Iraqi detainees who were tortured at Abu Ghraib prison two decades ago.

• Please keep Ted Frank, founder of the Hamilton Lincoln Law Institute, in your thoughts and prayers, as he recovers from heart-transplant surgery.

Judge of the Week: Judge Edith Jones.

At a Thursday panel at the FedSoc conference, “The Continued Independence of the Judiciary,” Judge Edith Jones (5th Cir.) had harsh words for a fellow panelist—Professor Stephen Vladeck of Georgetown Law, seated directly to her right (ironically enough). It was, along with the Gaetz nomination, a popular topic of conversation among attendees.

The headnotes version is that Professor Vladeck has been a strong critic of so-called “judge shopping”—the practice of filing a lawsuit strategically, sometimes in a judicial district (or division of a district) with little or no connection to the case, to try to land a sympathetic judge. Judge Jones believes that his criticisms are not just unfounded, but made in bad faith—and she was more than happy to say so at this panel, as covered by Bloomberg Law, Above the Law, and Law & Crime.

I’m going to respectfully dissent from the media evaluations of Judge Jones as “tear[ing] into” or “brutally criticiz[ing]” Professor Vladeck. Maybe my expectations were too high (or low?)—based on all the buzz around the conference, as well as my past experience covering Judge Jones—but when I watched the video (starting at 50:23 and 1:17:17), her remarks weren’t as aggressive as I thought they’d be.

Judge Jones’s criticisms were certainly pointed, and reading Vladeck’s tweets back to him was pretty in-your-face. But she never raised her voice or told him to “shut up”—as she once did to a fellow Fifth Circuit judge, in the middle of an oral argument—so it struck me as mild by her standards. (Perhaps it was one of those “you had to be there” experiences; I was attending a different panel at the time, so I didn’t see the live proceedings and had to watch the video.)

At the same time, Judge Jones wasn’t particularly nice to Professor Vladeck—a left-of-center academic who agreed to enter the FedSoc lion’s den, when he could have simply declined—and her remarks were one big call-out. So in terms of the Twitter debate over her comments, I fall more on the side of Professors Will Baude and Orin Kerr, who didn’t love her approach, as opposed to Adam Mortara, who lauded it.

In his opening remarks the next morning, FedSoc senior VP Dean Reuter expressed special thanks “to those with divergent views that continue to show up at Federalist Society events,” representing the liberal or progressive perspective before a group of conservative and libertarian lawyers. And even though he didn’t mention Professor Vladeck or Judge Jones by name, Reuter’s comments were construed by many attendees as an apology of sorts to Vladeck.

And if that was Reuter’s intent, I think it was appropriate. Right now, there’s a debate going on over the future of the Federalist Society (reflected in its search for a new president, with Reuter as one of two finalists). Will FedSoc adhere to its traditional role as a forum for intellectual debates about important legal issues—or will it become more right-wing and aggressively political? I’m hoping for the former—and as Dean Reuter correctly noted in his Friday comments, “We’re only able to have debate and discussion if we can get people of divergent views to join our convention.”

In nominations news, the Senate confirmed two judges: in-house lawyer April Perry (N.D. Ill.), by a vote of 51-44, and Magistrate Judge Jonathan Hawley (C.D. Ill.), by a vote of 50-46. Ignoring Trump’s call for Republicans to oppose any confirmations during the lame-duck session, Senators Susan Collins of Maine and Lisa Murkowski of Alaska both voted for Perry, and Murkowski voted for Hawley as well.

Speaking of judicial nominations, will Trump get to make any to the Supreme Court in the next two years? I’d like to amend some of my prior predictions.