Judicial Notice (11.09.25): ‘It’s A War, Man’
The finalists for Yale Law dean, controversial comments by a top DOJ official, a verdict for the sandwich guy, and a Biglaw firm shedding partners.
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I just returned from Washington, D.C., where I attended two great events. First, on Wednesday night, I went to the launch party of Dunn Isaacson Rhee. It was attended by a number of legal luminaries, largely from the left side of the aisle—to be expected, in light of how name partners Karen Dunn and Jeannie Rhee served at high levels in Democratic administrations—although I did say hi to Chuck Cooper of Cooper & Kirk.
Second, from Thursday through Saturday, I rubbed shoulders with conservatives and libertarians—and some fellow journalists—at the Federalist Society’s 2025 National Lawyers Convention (NLC). A number of events at the Convention proved newsworthy, and some of them are discussed below. Thanks as usual to my parents and parents-in-law for watching Harlan and Chase while Zach and I were down in D.C.
And thanks to everyone who voted in last week’s poll about your preferred time window for receiving Judicial Notice. There was a three-way tie between Sunday afternoon (12 p.m. to 5 p.m.), Sunday evening (5 p.m. to 10 p.m.), and early Monday morning (6 a.m. to 9 a.m.), with later on Monday morning (9 a.m. to 12 p.m.) a distant fourth. Going forward, I’ll try to send out Judicial Notice between 5 p.m. and 10 p.m. on Sunday, which splits the difference between the three most popular options (and if I can’t make Sunday at 10 p.m., I’ll send out JN early on Monday morning).
Now, on to the news.
Lawyer of the Week: Todd Blanche.
One of the most newsworthy events at the NLC was a “fireside chat” in which Deputy Attorney General Todd Blanche, the #2 official at the U.S. Department of Justice (DOJ), fielded questions from Gene Hamilton, co-founder of the America First Legal Foundation and a DOJ lawyer during the first Trump administration. There was no actual fire—but Blanche’s remarks were certainly fiery, garnering coverage in Bloomberg Law, Law360, and Politico, among other outlets.
Most notably, Blanche laced into judges who have ruled against the Trump administration. He claimed that even if they wear robes, they’re “more political, or certainly as political, as the most liberal governor or D.A.” A number of these judges are “repeat players,” getting one Trump case after another—and “it’s a war, man.” The adverse rulings happen “over and over and over again,” Blanche lamented—and there’s no efficient or effective way to deal with these “rogue activist judges.”
Personally speaking, I find this rhetoric unhelpful. While I don’t deny the existence of judges who misuse judicial power, I believe they represent a small minority of the federal judiciary. And my own preference—echoed by former judge Thomas Griffith, when he moderated the Rosenkranz Debate at this year’s NLC—is to criticize ideas, not individuals (e.g., opinions rather than judges). This is especially true today, given that judges face a growing number of threats against themselves and their families.
I also believe that Blanche’s attacks on the judiciary, which led most news stories about his remarks, overshadowed the legitimate issues he raised about so-called “lawfare,” i.e., weaponization of the justice system against one’s political adversaries. Blanche also criticized “regulation by prosecution,” arguing that under the Biden administration, “you had entire units at the [DOJ] going after industries.” These problems are, in my view, more serious than “rogue activist judges”—who can be reined in by circuit courts or the Supreme Court, often quite quickly.
Legal academics of the week: Professors Daniel Markovits and Cristina Rodríguez. Emerging from a field of more than half-a-dozen contenders, they’re now the two finalists to serve as the next dean of the Yale Law School. They share a lot in common: undergraduate degrees from Yale College, prestigious fellowships (a Marshall for him and a Rhodes for her), J.D. degrees from Yale Law (class of 2000), and clerkships for prominent jurists (Judge Guido Calabresi for him, and Judge David Tatel and Justice Sandra Day O’Connor for her).
Despite these superficial similarities, they’d be different as deans, or so many observers think. One current student told me that Rodríguez is perceived as “Heather 2.0”—referring to former dean Heather Gerken, now president of the Ford Foundation (where she has big plans, shared with Adam Liptak of The New York Times). “Heather 2.0” might be an exaggeration, but I think it’s fair to say—based on my conversations with current and former YLS students, faculty, and staff—that most Gerken supporters lean toward Rodríguez, while most Gerken critics favor Markovits.
Other lawyers in the news:
Brad Karp, the longtime chair of Paul Weiss, was heckled and protested at a New York Bar Foundation gala honoring fellow Paul Weiss partner Loretta Lynch. Karp continues to receive criticism for his firm’s controversial settlement with Donald Trump, which wound up as the template for other Biglaw settlements.
An unidentified lawyer was caught on a hot mic criticizing Vice Chancellor Morgan Zurn of Delaware Chancery, after a hearing before Zurn had concluded but before the audio had been turned off. According to Semafor, the attorney “can be heard insulting Zurn’s grasp of the law and criticizing her handling of the case”—but the only direct quotation, a claim that Zurn was “misunderstanding” the nature of M&A auctions, struck me as pretty tame. (The litigation involved the bidding war between Pfizer and Novo Nordisk for Metsera, a startup focused on making drugs to address obesity—a war that Pfizer just won.)
In a “David v. Goliath” moment, Daniel Ginzburg, a solo practitioner from New Jersey, argued in the U.S. Supreme Court against the legendary Lisa Blatt—who has the highest win rate among veteran SCOTUS advocates. Based on Kelsey Dallas’s SCOTUSblog write-up, it sounds like he held his own.
Speaking of SCOTUS newbies, last week also marked the high-court debut of Frank Chang, who argued on behalf of an injured veteran in Hencely v. Fluor Corporation. Chang, a counsel at Consovoy McCarthy, graduated from law school only eight years ago—but consistent with the views of its founder, the late Will Consovoy, the firm’s partners are big believers in giving opportunities to younger lawyers. And it was especially appropriate for Chang to argue this case: as Consovoy partner Patrick Strawbridge told me, “Frank previously served in the Army National Guard, so this case had personal significance to him.”
Congratulations also to Deepak Gupta of Gupta Wessler and Rick Friedman of Friedman Rubin. They won Litigator of the Week honors from Ross Todd of Am Law Litigation Daily, after persuading the Washington Supreme Court to reinstate the $185 million verdict in a case brought against Monsanto by three public-school teachers. The plaintiffs alleged that exposure to polychlorinated biphenyls (PCBs) caused them to develop neurological problems.
Here in the New York tristate area, everyone’s buzzing about NYC Mayor-elect Zohran Mamdani. So I noted with interest that his transition team will be co-chaired by another progressive icon, Lina Khan—former chair of the Federal Trade Commission (FTC), now back on the faculty at Columbia Law.
The federal government shutdown has been going on now for around 40 days—and it’s affecting everyone from recipients of SNAP benefits (discussed below) to air travelers to attorneys. Prosecutors and other DOJ lawyers haven’t been getting paid, and private-sector lawyers who represent indigent criminal defendants under the Criminal Justice Act (CJA) are in an even worse predicament: they haven’t been paid since July (because the fund that compensates them ran dry well before the shutdown).
Federal public defenders, who work for the judicial branch, and other employees of the judiciary, including law clerks, continued to get paid after the shutdown started on October 1, mainly thanks to money that the judiciary had from certain fees (e.g., filing and docket-access aka PACER fees). But now even those funds have run out—so this past Friday, these lawyers and staffers didn’t get paid.
In memoriam: Stan Chesley—the prominent plaintiffs’ lawyer who secured billions for his clients in headline-making class actions, before getting disbarred for taking millions from clients—passed away at 89. His survivors include Judge Susan Dlott (S.D. Ohio), who lived with him in a 21,000-square-foot mansion that was the subject of a home invasion in 2015. (They sold the house shortly thereafter.)
Judges of the Week: Justices Kevin Dougherty, Christine Donohue, and David Wecht.
The most closely watched elections last week were the gubernatorial elections in New Jersey and Virginia—won by Mikie Sherrill and Abigail Spanberger, respectively. Sherrill is a lawyer: she graduated from Georgetown Law, worked as an associate at Kirkland & Ellis, and served in the U.S. Attorney’s Office for the District of New Jersey (which she joined as an outreach and reentry coordinator). [UPDATE (11/10/2025, 11:41 a.m.): The preceding sentence was revised to describe Sherrill’s time in the U.S. Attorney’s Office with greater precision.] As a resident of the Garden State and fellow alum of the U.S. Attorney’s Office for New Jersey, I extend my congratulations to Sherrill and to my state representative, Andrew Macurdy—a Harvard Law graduate, former AUSA (D.N.J.), and partner at Sanford Heisler.
The most notable judicial elections took place in Pennsylvania, where three incumbent Democrats—Justices Kevin M. Dougherty, Christine Donohue, and David N. Wecht —won their retention elections, with more than 60 percent of the vote. This means the Pennsylvania State Supreme Court will maintain its 5-2 split in favor of Democrats.
In these retention elections, the justices had no Republican opponents—voters simply voted “yes” or “no” on whether to keep each justice on the court—and it’s extremely rare for an incumbent to lose. The last justice to lose a retention was former justice Russell Nigro, back in 2005—i.e., two decades ago. Retention gives a justice another 10 years on the court (subject to the court’s mandatory retirement age of 75, which Justice Donohue will hit in 2027).
Given how hard it is to dislodge an incumbent, why was more than $16 million spent on advertising in these races? Because the stakes were so high. As noted by The Times, “control over state supreme courts has become a vital part of both parties’ quest for electoral power”—and the Pennsylvania Supreme Court has decided numerous election-related issues in recent years. And because Pennsylvania is the biggest swing state in the nation, control over its high court is important not just for the Keystone State, but the country.
In other news about judges and the judiciary, Judge Mark Wolf (D. Mass), 78, resigned from judicial office. Why did Wolf, a Reagan appointee, decide to leave the bench? In an essay for The Atlantic (gift link), he explained that he “no longer can bear to be restrained by what judges can say publicly or do outside the courtroom…. The White House’s assault on the rule of law is so deeply disturbing to me that I feel compelled to speak out. Silence, for me, is now intolerable.”
Judge Wolf took senior status in 2013, so his resignation leaves no vacancy for Trump to fill. But on the flip side, any judge who wants their successor to be picked by Trump should watch the calendar—especially after last week’s elections, which didn’t go well for Republicans. According to Michael Fragoso, writing in National Review, “we cannot take a Republican Senate for granted next Congress”—so any judge who wants to be replaced by a Republican appointee should announce their decision to step down as an active judge no later than May 1.
Turning to current nominations, the Senate confirmed two circuit-court picks: Eric Tung, a former Jones Day partner joining the Ninth Circuit, and Joshua Dunlap, a former Pierce Atwood partner joining the First Circuit. After Tung’s arrival, the Ninth Circuit will have a 16-13 balance in favor of Democratic appointees; after Dunlap’s arrival, the First Circuit will have a 5-1 balance in favor of Democratic appointees.
I mentioned last week that James Maxwell and Robert Chamberlin, both Mississippi Supreme Court justices nominated to district-court openings, seemed to be stuck in the Senate Judiciary Committee (SJC), for unknown reasons. Now we know a little more: according to Tiana Headley of Bloomberg Law (via Howard Bashman’s How Appealing), Senator Roger Wicker (R-Miss.) is negotiating with Senator Thom Tillis (R-N.C.), a member of the SJC, concerning “some minor issues” (which the senators wouldn’t disclose, but they’re unrelated to the nominees).
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