Judicial Notice (03.08.26): You're Not The Boss Of Me

Representative Jasmine Crockett (D-Tex.), a public defender turned civil-rights litigator turned congresswoman, did not prevail in the Texas Democratic Senate primary (photo by Ron Jenkins via Getty Images).

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The news cycle continues to be dominated by U.S. military operations in Iran aka Operation Epic Fury. This story has important legal aspects—but as I mentioned last week, I’m not well-equipped to address them. For thoughtful discussions of whether Donald Trump needs congressional authorization for his strikes against Iran, I refer you to Sarah Isgur and David French of Advisory Opinions, as well as the analyses collected by Howard Bashman at How Appealing (from a quartet of leading legal commentators: Ruth Marcus, Jill Lepore, Charlie Savage, and Scott Anderson).

Given all that’s going on, it feels a little strange or self-indulgent to talk about what’s going on in my life. But sometimes during challenging times for the nation or the world, it can help to focus on what lies within our own control—so here goes.

Last week, after a few weeks of traveling for speaking engagements—which I enjoy doing, even though it can be exhausting—I stayed at home. And it was great: I exercised five days in a row, got six consecutive nights of decent sleep, and handled some projects around the house. And potty-training of our two-year-old son, Chase? Handled (well, almost—I endorse three-day (naked) potty training, but don’t be surprised if getting to 100 percent compliance takes a little longer).

Speaking of speaking gigs, I’ve come up with a fun idea for those of you involved in planning summer programs: invite me and my husband, SCOTUSblog executive editor Zach Shemtob, to speak to your summer associates. We can do a recap of the Supreme Court Term or discuss the Court in general—with more candor and humor than still-practicing SCOTUS advocates—and then chat about other topics that might be of interest, such as career alternatives for attorneys or LGBTQ family building through surrogacy (which we know about from both a legal and personal perspective). If that sounds like it might be of interest, please email me ([email protected]), subject line “Speaking Invite.” We’re also happy to present at firm retreats, partner meetings, and children’s birthdays (sorry, no balloon animals).

A programming note: our eight-year-old son Harlan began his spring break yesterday, so for the next two weeks, I’ll be a bit distracted (and traveling—if anyone has recommendations for Costa Rica, please send them my way). I will be online and producing content, but if you have something for my consideration, I’d suggest holding off until the week of March 23 (assuming it can wait).

Now, on to the news.

Lawyers of the Week: John Cornyn, Ken Paxton, and Jasmine Crockett.

As a general matter, I pick Lawyers of the Week based on what they’ve done as lawyers, as opposed to featuring newsmakers who happen to be attorneys. But this week, I’m diverging from that practice and highlighting three lawyers who are in the news primarily for their involvement in politics—because (1) the U.S. Senate primaries in Texas were such a huge news story, (2) these lawyers’ stories have implications for legal issues, and (3) to be honest, there wasn’t much competition this week.

Last Tuesday, Senator John Cornyn and Texas Attorney General Ken Paxton were the top two vote-getters in the Republican primary, with around 42 percent and 41 percent of the vote, respectively—but because neither won a majority, they’ll compete in a May 26 runoff. Both are lawyers, and their legal backgrounds are important to their political careers: Cornyn is a former Texas attorney general, former Texas Supreme Court justice, and current member of the Senate Judiciary Committee, while Paxton is the sitting Texas AG—a position he has aggressively leveraged to advance his political ambitions, by filing more than 100 lawsuits against the Obama and Biden Administrations (regarding issues like immigration or environmental regulation).

Meanwhile, in a battle between two rising stars of Democratic politics, Texas state legislator James Talarico defeated Representative Jasmine Crockett. A former educator and current Presbyterian seminarian, Talarico prevailed over Crockett—a former public defender who then went into private practice, where she focused on civil rights and criminal defense—by offering a message focused on unity and love.

Unlike many legal journalists, I have no desire of branching out into political commentary, so I’ll turn the floor over to my former Above the Law colleague, Elie Mystal. We have our disagreements, but I concur in the bottom line of his latest piece for The Nation: if you’re a Democrat in Texas, you shouldn’t be rooting for the scandal-plagued Ken Paxton to win the Republican runoff, on the theory that “Paxton is one of the most odious public figures around, and… he can be more easily beaten in the general election than the stuffed suit that is Cornyn.” As noted by Mystal, Democrats haven’t won a statewide election in Texas since 1994—and are unlikely to do so anytime soon. I will turn straight—or, more likely, die—before Texas turns blue.

Other lawyers in the news:

On Friday, the Florida Bar walked back an earlier statement that it was investigating Lindsey Halligan, who took flak for criminal cases against political adversaries of Donald Trump during her short-lived tenure as head of the U.S. Attorney’s Office for the Eastern District of Virginia.

That retreat came two days after the U.S. Department of Justice unveiled a proposed regulation that would, whenever a DOJ lawyer is the subject of a state bar complaint, give the Department “the right to review the allegations in the first instance and [to] request that the bar disciplinary authority suspend any parallel investigations until the completion of the Department’s review.” As noted by The New York Times, the DOJ “has no apparent legal authority over state bar disciplinary organizations,” but “legal experts said that even a request like that by the administration could be interpreted by bar associations as a threat.”

Former special counsel Jack Smith, famously tight-lipped while prosecuting Trump, is now back in private practice—and speaking more about what’s going at the Department of Justice. In a recent lunch event at his alma mater, Harvard Law School, Smith said that “[w]hat we are seeing today [at the DOJ] is not normal.” (He also shared the fun fact that he got into HLS off the waitlist.)

In other DOJ news, a pro se litigant called out assistant U.S. attorney Rudy Renfer (E.D.N.C.) for allegedly submitting a court filing with fake quotations and misstated case holdings. Magistrate Judge Robert T. Numbers II then issued a show-cause order, asking Renfer and his office to explain themselves.

Mark your calendars for April 21: that’s when Kathryn Ruemmler, the outgoing general counsel of Goldman Sachs, will testify to the House Oversight Committee about her ties to the late financier and sexual predator Jeffrey Epstein—an opportunity that Ruemmler’s spokesperson claims she “welcomes.”

Ruemmler was one of several star litigators who made their names by prosecuting massive fraud relating to the long-defunct Enron Corp. Of the 30 or so individuals who were charged in the Enron scandal, only two were acquitted. One was represented by Barry J. Pollack, now representing ousted Venezuelan President Nicolás Maduro, as discussed in this Bloomberg Law profile of Pollack (who worked as a certified public accountant before enrolling at Georgetown Law, where he almost overlapped with Kathy Ruemmler).

Alabama prosecutors allege that solo practitioner Sara Baker, 74, attempted to murder her husband of 30 years—by trying to poison him with fentanyl, on three separate occasions last September.

In memoriam:

Alan Trustman—who graduated from Harvard Law and was a partner at Nutter McClennen & Fish in Boston, before going on to a successful career as a Hollywood screenwriter—passed away at 95.

Gregory P. Joseph—a prominent trial attorney, former past president of the American College of Trial Lawyers, and founding partner of Joseph Hage Aaronson—passed away at 75.

Jason Daria, a shareholder at Feldman Shepherd and president of the Philadelphia Trial Lawyers Association, passed away at 56, after a four-and-a-half-year battle with metastatic melanoma.

May they rest in peace.

Judges of the Week: Judges Kenneth Lee and Brian Murphy.

Last month, I mentioned Judge Brian Murphy (D. Mass.), who was profiled in Law360 after issuing a number of newsworthy rulings against the Trump administration. Judge Murphy is back in the headlines—and not just in the legal media. As Adam Liptak recently reported in The Docket, in his new legal newsletter for The Times (gift link), Judge Murphy now finds himself in a “battle royale”—with both the Trump administration and also the U.S. Supreme Court.

Last summer, in two separate orders on its emergency or interim docket, the Supreme Court blocked rulings by Judge Murphy against so-called third-country deportations—the practice of sending immigrants to nations other than their country of origin, often to destinations seen as unwelcoming or dangerous. After last year’s SCOTUS rebukes, most jurists in Judge Murphy’s shoes (or robes) probably would have gotten out of the way of third-country deportations—but not Judge Murphy, who just issued an 81-page opinion once again holding third-country removal to be unlawful.

Near the end of this opinion, Judge Murphy acknowledged that he was “forced to wrestle with the fact that the Supreme Court did previously stay the preliminary injunction” and that he “could be missing something in the final analysis.” But in the end, as Liptak explained, Murphy “concluded that his latest decision was meaningfully different from the earlier one, addressing a broader array of claims and resulting in a final judgment for the challengers rather than preliminary relief.” (He did, however, stay the judgment in the case for 15 days, to give the government time to appeal.)

In defense of Judge Murphy and other lower-court judges who seem to go against the “gist” of certain SCOTUS rulings on the interim docket, almost 200 former federal and state judges recently filed a noteworthy amicus brief in a Supreme Court case involving Temporary Protected Status (TPS)—another subject that has been the subject of interim-docket litigation. (The names of the signatories take up the last ten pages or so of the filing, so I’ll mention just the first two names on the list, which my readers will recognize: former Fourth Circuit judge J. Michael Luttig and former District of Massachusetts judge (and OJ podcast guest) Nancy Gertner.)

Here’s an excerpt from the former judges’ brief in Noem v. Doe, concerning (now former) Homeland Security Secretary Kristi Noem’s decision to terminate TPS for migrants from Syria (emphasis in the original):

Whatever the force of the orders this Court issues in cases on the emergency docket that explain the basis for the Court’s decision, its unexplained emergency decisions are not binding, or even especially informative, when lower courts exercise their judicial power in a different case involving different facts and circumstances. Absent reasoned direction from this Court, lower courts must determine the applicable law in the cases before them and apply that law to the different facts in those cases.

My read: emergency-docket rulings from the Supreme Court provide district judges with little to no guidance on the law, so SCOTUS and other appellate courts should give trial judges—who are trying their best to deal with a deluge of difficult cases, under challenging circumstances—the benefit of the doubt.

Now let’s hear a different perspective about the relationship between trial and appellate courts, reflected in a recent solo opinion by Judge Kenneth Lee (another former podcast guest). In Pacito v. Trump, the Ninth Circuit ruled that the Trump administration has the authority to indefinitely suspend admissions of foreign nationals seeking to enter the United States under the U.S. refugee resettlement program. Judge Lee agreed on the key issue, praising the “magisterial” analysis of Judge Jay Bybee’s majority opinion, but wrote separately to add additional thoughts:

I also write separately to highlight what happened in the district court because it reflects a recent trend that I fear will erode the credibility of the judiciary. To be clear, courts can and should intervene if the President oversteps legal bounds. We, however, must not be seduced by the temptation of judicial resistance: District courts cannot stand athwart, yelling “stop” just because they genuinely believe they are the last refuge against policies that they deem to be deeply unwise. Otherwise, we risk inching towards an imperial judiciary that lords over the President and Congress.

Not surprisingly, Judge Lee’s opinion was well-received among conservatives—such as Ilya Shapiro, who opined that “Judge Ken Lee shouldn’t be overlooked in SCOTUS nom discussions” (I agree, for whatever it’s worth.)

Judge Lee isn’t alone in being concerned about allegedly overreaching judges. For opinions with a similar “reining in renegade district judge” vibes, see Judge Marvin Quattlebaum’s order for a divided panel of the Fourth Circuit in In re Musk, which issued a writ of mandamus directing Judge Theodore Chuang (D. Md.) to grant a protective order shielding Elon Musk from being deposed in a USAID-related case, and Judge Edith Jones’s dissent from the denial of rehearing en banc in Voice of the Experienced v. LeBlanc, a Fifth Circuit case involving Louisiana inmates being assigned to farm work in difficult summer weather conditions.

Joined by four conservative colleagues, Judge Jones objected to her court’s failure to “forcefully rebuke the district court’s gamesmanship that avoided the requirements of federal law”—here, the Prison Litigation Reform Act. This led Judge Stephen Higginson, joined by three fellow liberals, to clap back in a concurrence: “It is a disservice to our branch for any inferior officer to speak of ‘rebuk[ing]’ or ‘policing’ another. In that spirit, we would all do well to remember our late colleague Judge [Thomas] Reavley’s kind and gentle reminder that ‘[t]he trial judge is the key to the administration of justice…. [I]t is a function of the circuit judge to be an enabler of the trial judge, because the trial court is the point of delivery of justice.”

Turning to judicial nominations, last week brought no new nominees or confirmations. But here’s a fun fact, reported by Bloomberg Law: in Trump’s second term to date, he has nominated five graduates of George Mason University’s Antonin Scalia Law School for federal judgeships. That’s more second-term nominees than from any other law school, equal to Yale Law (3), Chicago Law (2), and Harvard (0)—combined. In the words of Professor Rob Luther, who worked on nominations at the White House during Trump’s first term, he and his colleagues at Scalia Law are training lawyers who are “willing to take on the hard cases.”

Job of the Week: in-house opportunities for transactional and litigation lawyers in Phoenix.

Lateral Link is partnering exclusively with a premier global renewable-energy company that seeks two senior attorneys for its U.S. legal team: (1) a commercial contracts counsel with substantial experience drafting and negotiating complex agreements, and (2) a commercial litigation and disputes counsel with strong experience managing complex commercial disputes. These roles offer a rare opportunity for lawyers with both in-house and Biglaw experience—particularly in the renewable energy, infrastructure, or technology sectors—to step into high-visibility, hands-on positions within a sophisticated global organization. The positions are based in Phoenix and require four days per week on-site. In addition to highly competitive compensation and comprehensive benefits, the company offers the opportunity to build long-term in-house experience with a dynamic global organization that continues to invest in the growth of its legal function. For more information, please contact Gloria Cannon at [email protected].

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