Non Sequiturs: To Convict, Or Not To Convict?

Some interesting links and recommended reads from around the web, on impeachment and other topics.

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.

  • Donald Trump has left office, but his drama remains with us. Yesterday, CNN broke the news that Trump’s five impeachment defense attorneys told their client “you’re fired,” quitting his team with little more than a week left before trial. Per CNN, lead attorney Butch Bowers and his colleagues wanted to focus on the legality of convicting a president after he has left office, while Trump wanted to relitigate his (baseless — I’m sure getting tired of putting this in parentheses before everything Trump says) claims of election fraud.

  • Whether a former official can be convicted on impeachment is an interesting question — and I’ve been pleasantly surprised by the thoughtful and serious discussion surrounding it, which hasn’t broken (entirely) along partisan or ideological lines. The 150+ signatories to the January 21 letter of constitutional law scholars on the impeachment of former officers span the ideological spectrum from Steven Calabresi, a co-founder of the Federalist Society, to Judge Nancy Gertner (Ret.), who’s definitely not a member of FedSoc.

  • Conservatives divide on the question. Two former Supreme Court shortlisters from the George W. Bush administration, former judges J. Michael Luttig and Michael McConnell, disagree on whether Trump can be tried in the Senate, with McConnell arguing it’s permissible and Luttig arguing it’s not.

  • And there’s disagreement on the other side of the aisle too. Professor Laurence Tribe of Harvard, co-author of a book on impeachment (with Joshua Matz, who’s back on the prosecution team), argues that yes, the Senate can hold an impeachment trial even though Trump has left office. Professor Philip Bobbitt of Columbia, who edited and updated Charles Black’s classic book on impeachment, argues that it can’t. Neither Tribe nor Bobbitt is a Trump fan, but they part ways on how he should be punished.

  • Meanwhile, as Trump continues to generate headlines, President Joe Biden and his administration are moving forward on their agenda — which includes possible Supreme Court reform. The Biden Administration is putting together a bipartisan commission, co-chaired by former Obama White House Counsel Bob Bauer and Yale law professor Cristina Rodríguez, to study possible reforms to both SCOTUS and the federal judiciary more generally.

  • Speaking of SCOTUS, for all of you judiciary junkies, there’s still time to register for a great virtual event tomorrow, hosted by the Center for Women in Law at the University of Texas School of Law and sponsored by Lateral Link. The panel will feature NPR’s Nina Totenberg and four former law clerks to the late Justice Ruth Bader Ginsburg, who will talk about RBG and her life and legacy. You can register here (and the panel offers 1.25 hours of CLE credit, in Texas and reciprocal jurisdictions). For those of you in the northeast, this is a great way to spend a snow day.

  • Was Justice Samuel Alito out of line when he delivered what USA Today (via Howard Bashman/How Appealing) described as a “gloves-off speech” articulating his conservative worldview to the Federalist Society last November? Not true, not true! As Justice Alito pointed out to the paper, “Virtually every substantive point in the Federalist Society speech was taken from one of my published opinions or an opinion I joined.”

  • Still on the subject of the Supreme Court, what can we expect from the Office of the Solicitor General in the Biden Administration? Former Solicitor General Paul Clement and former Acting Solicitor General Neal Katyal recently tackled the topic, and they seem to think that the new acting solicitor general, Elizabeth Prelogar, will change the Justice Department’s positions in several cases — which the DOJ has traditionally been reluctant to do with a change in administration, but which in this case might be more justified because Noel Francisco, Trump’s SG, previously switched positions at a higher than usual rate.

  • And what can we expect from President Biden on the federal courts and court reform more generally? He has expressed qualms in the past about so-called “court packing,” but that doesn’t mean progressive groups won’t try to persuade him. As reported last week by Zoe Tillman of BuzzFeed News, a coalition of liberal groups called “Unrig the Courts” just launched, with the goal of bringing about significant structural reform — adding seats to SCOTUS and the lower courts, imposing possible term limits for the justices, and subjecting the members of the Court to more stringent ethics and transparency rules.

  • Without adding new seats, it’s doubtful that President Biden will be able to have the same effect on the federal judiciary over the next four years that President Trump had over his time in office, in large part because Trump inherited so many vacancies (in large part because of Republican obstructionism that kept seats open, most famously the late Justice Antonin Scalia’s seat). But judges are starting to retire or to announce their future retirements. They include three members of the influential Northern District of California bench — Judges William Alsup, Phyllis Hamilton, and Jeffrey White — and another nine district judges around the country, per this tally by Professor Josh Blackman (who also notes how long ago each judge could have taken senior status; it looks like a number were holding out for a Democratic president).

  • Turning to the law firm world, how did the pandemic affect partnership promotions? Interestingly enough, partnership classes held fairly steady — 293 promotions in the Am Law 10 in the latest cycle, compared to 296 in the previous cycle. And gender diversity increased, with women representing 42 percent of new partners, up from 37 percent in the last cycle.

  • For women aspiring to make partner in Biglaw, speakers on a recent New York State Bar Association panel about the challenges of retaining and advancing women attorneys offered excellent advice and insight, recounted in this report by Jason Grant for the New York Law Journal.

  • New partner classes might not be shrinking, but the ranks of summer associates could be thinner this year. Rescheduled on-campus interviewing is winding down only now, so we don’t have all the data yet — but we know of at least one Am Law 200 firm, Saul Ewing, that is not hosting a summer program this year (and I suspect that it isn’t the only one).

  • Still on the diversity and inclusion front, congratulations to the more than 130 law firms earned perfect scores on the Human Rights Campaign’s 2021 corporate equality index, which measures company policies and practices related to LGBTQ workplace equality.

  • An increasing number of law firms are giving attorneys billable-hour credit for diversity-and-inclusion work — and one firm, Reed Smith, is extending this policy to cover all firm timekeepers, not just lawyers.

  • Diversity, equity, and inclusion are part of a larger conversation about social justice, which lawyers and law firms are more focused on than ever. One such firm is the high-powered litigation boutique of Hueston Hennigan, whose partners have committed $10 million to launch the Social Justice Legal Foundation. Inspired by the Skadden Fellowship Foundation, the Social Justice Legal Foundation is a nonprofit arm of Hueston Hennigan that will bring on fellows from five top law schools to try cases addressing key social justice issues, with mentoring provided by established trial attorneys.

  • Congratulations to Tiffany Mickel, the first Black editor-in-chief of the Virginia Law Review.

  • In memoriam: Judge Peter T. Fay (11th Cir.). As noted by David Oscar Marcus (via Howard), Judge Fay was “beloved in the SDFLA and the 11th Circuit,” “known for his civility and wonderful demeanor” — and for his athletic prowess, which extended to basketball, football, and water skiing (barefoot — sounds painful).

  • In memoriam: Judge Morton I. Greenberg (3d Cir.). Judge Michael Chagares, who clerked for Judge Greenberg and now occupies his judicial seat, remembered his former boss as “a man of brilliance, fairness, integrity; a real gentleman, with a deep dedication to public service and a sterling reputation on the bench” (via Matthew Stiegler, via Howard). Requiescat in pace.


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.

Share