Judicial Notice (06.23.24): Whose Originalism?

A prominent professor attacks a conservative judge, Judge Cannon returns to the news, litigation boutiques announce bonuses, and a lateral hire comes undone.

Judge Aileen M. Cannon, during her July 2020 confirmation hearing (screenshot via Senate Judiciary Committee video).

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I hope everyone had a happy Juneteenth, which commemorates the ending of slavery in the United States. It’s an important reminder that words on paper—like the Emancipation Proclamation, issued in 1863—need to be made real by action. And I’m honored to share my birthday with “America’s Second Independence Day,” a federal holiday as of 2021. Thanks to many of you for your kind greetings—and thanks to all of you for your readership and support of Original Jurisdiction.

The latest testimonial for Original Jurisdiction comes from Maria Ho, head of research at Vault Law: “At Vault, it is important that we stay current on what is happening in the legal world and understand the factors that might be driving changes in associate opinion and the Vault law firm rankings. Original Jurisdiction is one of my ‘must-reads,’ as it provides an incredibly up-to-date, thoughtful, and readable summary of the most relevant news and trends.”

My thanks to Maria for the commendation—and for all the work that she and her colleagues put into the Vault 100, their ranking of the nation’s most prestigious law firms. The new Vault 100 was just published (and I analyzed it here).

Now, on to the news.

Lawyer of the Week: Steven Calabresi.

Over the past year, Professor Steven Calabresi—a member of the Northwestern Law faculty since 1990 and a co-founder of the Federalist Society, where he co-chairs the Board of Directors—has been all over the news. His evolving views on Donald Trump and Trump-related legal matters are chronicled in this recent Balls and Strikes piece by Jay Willis. Whether or not you agree with Willis’s theory for Calabresi’s changes of heart, his post raises the possibility that Calabresi could use a bit more “message discipline.” While I admire thinkers who are willing to change their minds, too many rapid shifts raise the possibility of being too quick on the trigger (or keyboard).

Typically, Steve Calabresi does battle with folks on the left. But last week, he set tongues wagging by excoriating a prominent conservative: Judge Jerry Smith (5th Cir.). Professor Calabresi and Judge Smith disagree on the use of unpublished opinions and whether new federal judgeships need to be created—and it seems that Calabresi is taking their disagreements personally. Here’s an excerpt from a Volokh Conspiracy post by Calabresi, responding to an email from Judge Smith:

I now think that the power, and life tenure, you have had in the 36 years since your appointment has gone to your head and has turned you into an arrogant bully who throws a hissy fit over a BLOG post trying to intimidate a mere private citizen, and who has refused to take senior status for twelve years even though you have been eligible to do so since November 7, 2011.

You are like the character Gollum in J.R.R. Tolkien’s The Hobbit and The Lord of the Rings who has, after 36 years in power, been corrupted by wearing the ring of power for too long. You are a walking, living example of why federal judges should not have life tenure as active duty judges, but should be required to assume senior status after 18 years. You have become a part of the problem with the federal judiciary, and not the solution, which you were meant to be, in 1987, when President Ronald Reagan appointed you on the advice of Attorney General Ed Meese.

Tell us how you really feel, Professor Calabresi. And again, that’s just an excerpt. For the juiciest parts, start from the bottom of page four—with the paragraph beginning, “It is ironic that Judge Smith is so opposed to the obvious need for a new judgeship bill, since Judge Smith himself was appointed to a new seat”—and continue from there.

Calabresi later thought better of his caustic remarks. So he retracted them—but not before Howard Bashman shared the original version of the post on How Appealing, and not before it made the rounds by email and by text (which is how I learned about it, from readers who sent it along with “OMG read this” messages).

My advice to Professor Calabresi: take a temporary break from punditry, step away from your computer, and enjoy summer in Chicago. It’s one of America’s great cities, especially when it’s not frigid (and I’m looking forward to visiting in August, when I’ll be participating in a panel at the ABA Annual Meeting).

Other lawyers in the news:

• Also at the Volokh Conspiracy, Professor Josh Blackman broke down the division of oral arguments in the Office of the Solicitor General (OSG). Solicitor General Elizabeth Prelogar argued almost 19 percent of OSG cases in the Term now drawing to a close, which Blackman noted is the highest percentage in a quarter-century. His post hints at the possibility that she might be taking too many arguments—but when you review his list of her arguments, many of them are critically important cases that it might make sense for the SG to argue.

• In response to the effort by Tennessee Attorney General Jonathan Skrmetti and 20 other AGs to get the American Bar Association (ABA) to remove “explicitly illegal consideration of race” from law-school accreditation standards, Illinois Attorney General Kwame Raoul sent a letter to the ABA on behalf of 19 state AGs that criticizes “baseless attacks on diversity, equity and inclusion efforts and programs.” Game on.

• Trump legal advisor Boris Epshteyn (pronounced EP-stine), aka the world’s most notorious alum of Georgetown Law and Milbank, was arraigned on Tuesday on election-interference charges in Arizona.

• And speaking of other lawyers in deep doo-doo, Ohio lawyer Jack Allen Blakeslee, who gained notoriety for allegedly pooping into empty Pringles cans and leaving them all over the place, got his law license reinstated.

In memoriam:

• Brian Blomain, an associate in the Philadelphia office of Marshall Dennehey, passed away at 29 from a sudden health event.

• Molly Donovan, 43—a partner in the New York office of Bona Law, an antitrust boutique—was struck and killed by a school bus in Mamaroneck, New York, while walking her son Michael, 6, to school. Michael was pronounced dead on the scene; Donovan was taken to the hospital, where she later died.

May they rest in peace.

Judge of the Week: Judge Aileen Cannon.

In the three and a half years that I’ve been writing Original Jurisdiction, who is the lower-court judge who has most frequently been named Judge of the Week? Until this week, there was a three-way tie between Judges James Ho (5th Cir.), Kevin Newsom (11th Cir.), and Aileen Cannon (S.D. Fla.), who were all four-time “winners” of JOTW honors (which, I should remind you, are bestowed based on who’s being talked about or generating buzz, not any normative judgment of judicial fabulosity).

But now the tie has been broken—and Judge Cannon is the undisputed champ. She wound up in the headlines for two reasons.