Judicial Notice (11.10.24): Trumpworld

White House counsel contenders, SCOTUS retirement speculation, Project Veritas v. CNN, and optimism about M&A work.

Will they stay or will they go? Justices Samuel Alito, Sonia Sotomayor, and Clarence Thomas, at a 2014 event at their shared alma mater, Yale Law School (screenshot via C-SPAN).

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I’m relieved I made it through last week. And that’s not (only) a reference to Election Day, when I stayed up until 4 a.m. and engaged in stress eating that would have put The Very Hungry Caterpillar to shame.

Our son Harlan was off from school for much of the week, which introduced some scheduling challenges. And then starting on Thursday, I spent three days in three different cities: Philadelphia, for a meeting of the Board and Advisory Council of FIRE; New York, for a panel at PLI’s Communications Law conference; and Seattle, for a panel at the 2024 NAPABA Convention. I love traveling, speaking, and meeting readers in person, but it is exhausting.

Now, on to the news—and if you were hoping for a break from election-related news, I’m sorry to disappoint you, since it dominated the headlines last week. For some counterprogramming, check out my podcast interview with Alexandra Shapiro, currently representing both Sean “Diddy” Combs and Sam Bankman-Fried.

Lawyer of the Week: David Warrington.

As I predicted last week, litigation over the results wound up not playing a big role in the election. But running a presidential campaign involves many other legal issues besides litigation, from complying with the complexities of federal election law to executing contracts with vendors across the country. So significant credit for Donald Trump’s successful campaign belongs to its general counsel, David Warrington.

A partner in the Northern Virginia office of the Dhillon Law Group—the litigation boutique founded in 2006 by prominent Republican lawyer Harmeet Dhillon, who has also done significant work for Trump—Warrington focuses his practice on both litigation and political law. Before joining Dhillon Law, he practiced at Kutak Rock and LeClairRyan (may it rest in peace). He graduated from Georgetown and Scalia Law.

According to Politico, Warrington “helped guide the Trump campaign through a maze of unprecedented political and legal challenges”—and he could be rewarded for his work by being named to the powerful role of White House counsel. Other contenders, according to Politico, The Wall Street Journal, and The New York Times, include Stanley Woodward, who has represented multiple Trump aides and allies in various proceedings; Holtzman Vogel partner William “Bill” McGinley, cabinet secretary in the first Trump White House; and Mike Davis, a Republican operative, former Gorsuch clerk, and recent Lawyer of the Week. I believe that Dave Warrington has the inside track—one source of mine flagged him for me back in August as a possible White House counsel—but Trumpworld is full of surprises, so stay tuned. [UPDATE (11/11/2024, 4:23 p.m.): Mike David tweeted, “I have made crystal clear—for many months—I am not going back into government.”]

What about attorney general, a critical role in the Trump administration? He could go with a political ally, such as Senator Mike Lee of Utah or Senator Eric Schmitt of Missouri. He could turn to alumni of his first administration, including Mark Paoletta, former general counsel of the Office of Management and Budget; Jay Clayton, former chair of the Securities and Exchange Commission; or John Ratcliffe, former director of national intelligence. Or he could select a state attorney general, like Andrew Bailey of Missouri or Kris Kobach of Kansas. We’ll know soon enough.

[UPDATE (11/11/2024, 4:23 p.m.): Additional contenders for AG, per USA Today, include former assistant attorney general Jeffrey Clark, who would be controversial because of his involvement in the effort to overturn the 2020 election, and Judge Aileen Cannon, who would be controversial because of her handling of the Trump classified-documents case. And Texas Attorney General Ken Paxton appears to be auditioning for the role, per The Washington Post.]

In memoriam:

• Richard Winfield, longtime general counsel for The Associated Press and a stalwart defender of freedom of the press, passed away at 91.

• Lawrence “Larry” Robbins—a former partner at Friedman Kaplan, Kramer Levin, and the Robbins Russell appellate boutique, which he founded—passed away at 72 (and only weeks after publication of his debut novel, The President’s Lawyer).

• Alan Rachins, who wasn’t a lawyer but played one on TV—namely, Douglas Brackman Jr. of L.A. Law—passed away at 82.

May they rest in peace.

Judges of the Week: Justices Clarence Thomas, Samuel Alito, and Sonia Sotomayor.

Trump’s victory has triggered speculation over whether the two oldest members of the U.S. Supreme Court, Justices Clarence Thomas (76) and Samuel Alito (74), might retire. Some conservatives would like to see one or both of them step down during Trump’s second term—especially the first two years, when we know Republicans will have at least 53 Senate seats—so they could be replaced by similarly conservative but younger jurists. (For links to the copious coverage, see Howard Bashman’s How Appealing.)

For my thoughts on Justices Thomas and Alito, I refer you to my Thursday post, 4 Legal Implications Of Donald Trump’s Win. My bottom line: I could see Justice Alito retiring in 2025, followed by Justice Thomas in 2026 (although the odds of an Alito retirement are higher than a Thomas one, as suggested by Josh Blackman).

An addendum: the Thomas/Alito retirement talk triggered a rebuke by Federalist Society board co-chair Leonard Leo—a key adviser to Trump on judicial picks in his first term, before they had a falling-out—who issued a statement saying, “No one other than Justices Thomas and Alito knows when or if they will retire, and talking about them like meat that has reached its expiration date is unwise, uninformed, and, frankly, just crass. Justices Thomas and Alito have given their lives to our country and our Constitution, and should be treated with more dignity and respect than they are getting from some pundits.”

But I agree with conservative commentator Ed Whelan: “It’s one thing to guess what a justice will decide to do. It’s quite another to try to tell a justice what to do.” In my own discussion, I never purported to do the latter. (If I’m crass every now and then in these pages, though, don’t say you weren’t warned: as Judge Richard Posner quipped about my first blog, Underneath Their Robes, “It’s occasionally a little vulgar, but this is America in 2005.”)

This brings us to Justice Sonia Sotomayor. As discussed in The Washington Post and Politico, commentators like Josh Barro and Bakari Sellers, activists like Molly Coleman of the People’s Parity Project, and even unnamed Democratic senators have raised the possibility of the Wise Latina demonstrating her wisdom by allowing herself to be replaced by someone similarly progressive but younger—such as Judge J. Michelle Childs, 58, or even Vice President Kamala Harris, 60.

Successfully replacing Justice Sotomayor before Trump takes office strikes me as extremely unlikely. As mentioned in my Thursday post, Justice Sotomayor is 70—several years shy of the average SCOTUS retirement age of 75-plus over the past century, to say nothing of more recent liberal justices like Justice Ginsburg, who passed away in office at 87, or Justice Stevens, who retired at 90. Furthermore, as discussed in both the Politico piece and by Jay Willis of Balls and Strikes, the Democrats’ narrow margin in the Senate (51-49) and remaining time (around 40 days) make this gambit very risky. In Willis’s words, “for this ambitious bit of political hardball to work, everything would have to go right, which, when Senate Democrats are in charge of things, is generally not a good bet.”

Other judges in the news: