The Undebatable Qualifications Of Ketanji Brown Jackson

Episode Notes

Transcript

[Music]

Joe Patrice:  Hello and welcome to another edition of Thinking Like a Lawyer, I’m Joe Patrice. I am joined as usual by Kathryn Rubino and Chris Williams. We are all editors at Above the Law and we are talking about Legal Stories of the past week. You know? Given a quick rundown of the exciting stuff going on out there. Before we do that as usual, we have a little bit of a chat about unrelated things that’s going on with our lives.

Kathryn Rubino:  Yeah, just completely — 

Joe Patrice:  Which we call “Small Talk” The segment of the show where — 

Kathryn Rubino:  Do I just walk into these like a buzz saw. I’m like a fucking cartoon character over here, who like doesn’t see that the thing is about to be pulled out from underneath me. 

Craig Williams:  You’re unaware, that’s the entire state, it’s been that way for a while now.

Kathryn Rubino:  I mean I thought that one, he either was getting old and couldn’t remember the word Small Talk which I was kind of hopeful and I thought that might prolong the — don’t look at me like that Joe, you are in fact old. Oldest of us for sure. I woke up this morning and chose violence. 

Joe Patrice:  That was what the words I was about to say.

(Voice Overlap)

Kathryn Rubino:  I know you were very predictable.

Craig Williams:  Well, you know, old Joe’s don’t learn new tricks, is that how it goes?

(Voice Overlap)

— a new trick, I forget.

Joe Patrice:  So yeah, we are here obviously, it’s been a very eventful several days and not necessarily a legal story but in the mainstream news. Though there are legal angles to it. We are trying to keep on top of any law firms that do work for the Russian government and what they’re doing about it. So far at least Sidley, Venable and Baker, McKenzie apparently have all dropped their Russian government clients. So, we’ll see obviously there’s many more that do work there but we’re keeping an eye on that. That’s not really one of the stories we were talking about. But that’s — we just wanted to acknowledge that we do understand. Even though this shows not going to talk about that subject — 

(Voice Overlap)

Kathryn Rubino:  There is in fact a war going on. Yeah, I mean a good portion of my weekend was definitely spent in front cable news in a way that I’m not sure have been since 2001. 

Joe Patrice:  I don’t know about that — elections, I feel like that’s about the only time I ever turned-on cable news. 

Kathryn Rubino:  But I feel like the elections is more like a discreet amount of time. There is not like a “Oh it’s midnight, I don’t know, kind of let me turn it on. Let me see what’s going on.”

Joe Patrice:  Did you not watch the 2020 election? 

Kathryn Rubino:  Yeah, but we actually knew the answer before that.

Joe Patrice:  It took like five days but I hear you. 

Kathryn Rubino:  Yeah, but we were pretty.

Joe Patrice:  We had to turn Stephen to a folk hero.

Kathryn Rubino:  Yes, Steve Kornacki of MSNBC for sure?

Joe Patrice:  Draped in Khaki.

Kathryn Rubino:  Gap Khaki is — listen, they are classics for a reason. So, what did you do this weekend, Chris?

Craig Williams:  Fuck this weekend about 15 to 20 minutes ago. I just got a bunch of jackets. 

Kathryn Rubino:  Oh.

Joe Patrice:  Oh.

Craig Williams:  Yeah.

Joe Patrice:  I got one too today.

Craig Williams:  Yeah. So, for people, who don’t know what’s going on which is basically everybody listening right now including my mom, she does listen to this, hi, mom. So, Joe and his infinite grace told me that there is a website that was selling very nice jackets at super affordable prices because they were going out of business and I saw this one jacket that was like $27 and at retail like 150 or so, and I was like this is probably made with cardboard and then Joe is like “No, I have one” this is actually — 

Joe Patrice:  They’re decent jackets, yeah. 

Kathryn Rubino:  This is not a sponsored portion of our — because they are out of business. 

(Voice Overlap)

Craig Williams:  This is not sponsored by them because they may not exist anymore and my arm fits through. 

Joe Patrice:  Good,

Kathryn Rubino:  Step 1.

Joe Patrice:  Always first.

Craig Williams:  Oh, game over. Yeah, this is nice. It is nice. Oh.

Joe Patrice:  Now we can’t show yup in public both wearing the same jacket but yeah. 

Craig Williams:  Yeah, we can’t. I don’t know what you’re wearing but I’m wearing this. I am bagging somebody’s grandmother in this jacket. I’m going to get those ARP benefits. It is happening. Yo, this is nice.

Joe Patrice:  It is, yeah. And they were super cut. 

Craig Williams:  And the pockets, they have — one, they have pockets; two — oh wait this is a fake one, but hey you can’t have everything.

Kathryn Rubino:  Is it just — closed?

Joe Patrice:  Yeah, you might need to open it. But anyway.

Craig Williams:  But yeah so, I’m on a — 

Kathryn Rubino:  So, you got some clothes. 

Craig Williams:  Yes. Nothing helps soothe the existential angst and worry about sanctions with a little bit of consumerism. 

Kathryn Rubino:  Absolutely. I’ve definitely spent a fair amount this weekend shopping as well. How about you, Joe? What did you get into?

(00:05:02)

Joe Patrice:  I was judging a debate tournament.

Kathryn Rubino:  How did your teams do?

Joe Patrice:  They won.

Kathryn Rubino:  Nice.

Joe Patrice:  So yeah.

Kathryn Rubino:  I mean, I knew the answer to that question. I was kind — Oh, more conspicuous consumerism, I love it.

Craig Williams:  Do not mind me. This is one of the moments where I’m glad that the podcast is not being recorded because there’s — 

(Voice Overlap)

Kathryn Rubino:  I mean we are in fact.

Craig Williams:  Damn, but don’t make it weird, don’t remind me. This one is burgundy; oh, the streets are not ready. They are not ready.

Joe Patrice:  Nice. So, since you mentioned that I was judging a debate tournament. I think that’s a very good transition.

Kathryn Rubino:  I was trying. I’m here — for you.

Joe Patrice:  Okay, you’re done.

Kathryn Rubino:  You’re not here for me. I am here for you. I was trying to prompt a seamless transition here. But instead, I got interrupted rudely by your soundboard. 

Joe Patrice:  So, the transition of course is that we now have a nominee for the, the soon-to-be vacant Supreme Court seat, Judge Ketanji Brown Jackson will be going through a confirmation process which one assumes she would clear, given that she went through the same thing less than a year ago for her —

(Voice Overlap)

Kathryn Rubino:  I mean that is bold, but I certainly agree. I certainly hope that that’s true. But one thing that the Republicans have taught me over the Last seven or eight years is, there’s no dumb argument that they won’t make it.

Joe Patrice:  True. There was an attempt to block her before that failed and not much has really changed. So, one assumes she gets through. The reason this is a transition of is that she was a start on her speech and debate team at Miami Palmetto, and there was — 

(Voice Overlap)

Kathryn Rubino:  Yes, there was an article this weekend and New York Times wrote an article how a high school debate team shaped Ketanji Brown Jackson, and it includes a quote that she had from 2017, talking about the debate team that that was an experience that I can say without hesitation was when the one activity, that best prepared me for future success in law and life and all of your hosts are actually debate team alumni. So, it seems like we — so potential Supreme Court Justices. They’re just like us.

Joe Patrice:  Yeah.

(Voice Overlap)

Craig Williams:  Shoutout to Rutgers RU(ph) debate, uniting the crowns, forever and always. 

Joe Patrice:  Yeah, and I went to the University of Oregon who — 

Kathryn Rubino:  I debated for NYU.

Joe Patrice:  And there we go. Yeah.

Craig Williams:  NY-who? No?

Joe Patrice:  Anyway. So, it was very interesting. Judge Jackson of course actually won high school nationals in oratory which is persuasive speaking. Yeah, I actually talked with David Markus(ph) who also hosts a podcast about criminal defense work. Pretty prominent criminal defense lawyer in Miami. He actually was on — he traveled with Judge Jackson.

Kathryn Rubino:  So, he went on the same circuit in high school?

Joe Patrice:  He was on the same circuit in Miami. So, I chatted with him a little bit about his memories of her and yeah, I don’t really have much more to say about it on that front. On the more substantive front, we can transition to that if we can transition to that. This is obviously the candidate that I think we all thought was the front-runner all along. There was some noise about Judge Childs driven largely by South Carolina. Lindsey Graham and Tim Scott basically made noise, that they would support Judge Childs, given that Judge Childs is from South Carolina because some things are thicker than partisanship.

Kathryn Rubino:  State’s rights.

Joe Patrice:  Yeah, so that ultimately — yeah, I mean South Carolina getting way into State’s rights has never gone south on us at all. But yeah, no. So, they made that noise there was some suggestion that that might be what happened but no, Judge Jackson obviously ended up being the front runner like we thought all along which makes sense. Her nomination to the DC circuit was largely conducted as a preview for this.

Kathryn Rubino:  Sure, but I do think that going back to the earlier point about whether — how smooth this will be? Hopefully, it is smooth and I am just being overly nervous for no reason. I certainly hope that that is what happens. But Lindsey Graham in particular, he voted for Judge Jackson to be on the DC Circuit, but went very flame on this weekend saying how the nomination of Judge Jackson was a point for the far left and how Biden has given up Centrist and all the kind of terrible whatever’s that you could imagine. But he at least seems to be signaling. Well probably two things, one that he’s really pissed that it wasn’t Childs, one.

(00:10:00)

Two that you can’t take for granted that all the folks who voted for Judge Jackson to be on the DC Circuit will necessarily support her to be Justice Jackson. So, I think that that definitely opens up some more stuff. But one of the other interesting things was that despite sort of this fiery rhetoric, there doesn’t appear to be a ton of cases or decisions or articles that Judge Jackson has written that that the right seems to be calling attention to you as problematic. I think that they’re just basically saying it’s a black woman, she must be far left. As opposed to actually doing any of the anything that says this case is a problem. This case representation, it really is just about dog whistles at this point and not about actual substance which is both not surprising but may also be effective.

Joe Patrice:  You raised an important point that if somebody receives support and confirmation to a Circuit Court that does not necessarily translate to getting the Supreme Court and part of the reasons to that of course, is that Circuit Courts are courts and the Supreme Court is not despite the name. It’s not bound by anything which takes away most of the courtliness(ph) of it. Putting somebody on a certain — 

Kathryn Rubino:  District courts aren’t, don’t think that they’re bound by anything. 

Joe Patrice:  That’s true. We did talk recently about a District Court that didn’t think it was bound by anything, but they’re supposed to be and that does raise a calculus when you’re deciding who does and doesn’t get to be on there. That said, this was a very recent with the same group of senator’s process. It was an effort where all of the same opposition research had been martialed and proved insufficient. That does suggest that this will be a little bit smoother of a path and I think that was a large part of why she was always in my mind, a front-runner. You had somebody who had already gone through the crucible, basically recently and come out the other side with no scrapes, that makes it easier. So, we’re going to see this process unfold, preferably relatively quickly before midterms, and we will have somebody prepared to take that seat when Justice Breyer steps down after the term ends in June, July, depending on how much they’ve over-subscribed with cases.

Kathryn Rubino:  Which sounds like they may have, but we shall see.

Joe Patrice:  So, any other thoughts on our new Supreme Court nominee? Nope. All right, yeah.

Craig Williams:  If you’re looking for a clerk, let me know. I have a blue book, both virtual and physical. I’m not good at it but I’m willing to learn. I’m a big fan of Em Dash(ph).

Joe Patrice:  Everyone is. 

Craig Williams:  I like my comments Oxforded(ph), you feel me? You know?

Joe Patrice:  I actually read a thing. Who wrote it? There was somebody who wrote a guide to good legal writing, where one whole section was just “look, the Em Dash is amazing.

Craig Williams:  It’s so good.

Joe Patrice:  It was just like — I understand there are some people who are like, that should be a semicolon, but the author was like “no, use em dashes, they’re amazing. I completely agree” 

Kathryn Rubino:  This podcast is brought to you by the em dash.

Craig Williams:  I’m so em dash, I have memorized alt 0151 so I can just put the em dash into WordPress when I write. The only numbers I remember like that are my mom’s cellphone. That’s it, my mom’s cell phone, em dash. 

Joe Patrice:  I think if you put two em dashes in the backend, it appears on the site as an em dash.

Kathryn Rubino:  Yeah, if you do it in the text mode in WordPress as two little dashes, it’ll come up as an em dash. 

Joe Patrice:  Everyone is hearing a little bit of the inside baseball of how this whole thing works. So, what are we going to do now? Are we — oh, phone’s ringing? 

Kathryn Rubino:  Are you serious?

Joe Patrice:  We — what we did — 

Kathryn Rubino:  Did you increase the sound board so you can do a smoother transition to our ads? 

Joe Patrice:  I did this last week too. Do you not remember?

Kathryn Rubino:  I blacked out.

Craig Williams:  You must have been able to do this because you more free time.

Joe Patrice:  Excellent point, I had free time because I had folks able to field these calls and handle the — the intake and all the stuff that you need receptionists do. So, let’s here from Posh.

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(00:15:04)

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Joe Patrice:  All right, we’re back.

Kathryn Rubino:  Less smooth. 

Joe Patrice:  What do you mean? Not only was that smooth, I got an assist from Chris on it too.

Craig Williams:  Mine was velvet, come one. 

Joe Patrice:  I just think that Kathryn is —

Craig Williams:  Judge Jackson, if you’re listening, those was transitions could be yours too. 

Joe Patrice:  I guess let’s talk about Russia a little bit. I know we previewed this as part of small talk and we aren’t going back — is that the sound effect that you wanted to have as opposed to a trumpet? 

Kathryn Rubino:  The trumpet is particularly irritating but — 

Craig Williams:  I wouldn’t be opposed to like a Barry White, Small Talk. Just once, just once for the culture.

Joe Patrice:  Yeah, I like that. 

Kathryn Rubino:  I think people should definitely write — at abovethelaw.com, subject like Small Talk and let us know what sound effect you prefer for a small talk. We can get some like audience participation here. Small talk. 

Joe Patrice:  Yeah, so transitioning, we did preview a little bit that there’s — obviously there is a war on and there are efforts globally to kind of isolate the Putin regime but big law firms do a lot of work for that regime. And what are they doing about it? In some firms we’ve said have already announced that they are pulling away, others have been silent. Still others, I note there are a couple of firms, Freshfields and White & Case in particular who do work for some of the sanctioned Russian banks. However, they are doing litigation work in the middle of active ongoing cases which for a variety of professional responsibility — 

Kathryn Rubino:  Can’t just drop those like a hot potato.

Joe Patrice:  Yeah, it probably locks them in. And so, we as people want to begin a process of making noise and trying to pressure firms to drop these clients. Remember that at least some of these firms may be under professional obligations. That prevent them from acting quickly.

Kathryn Rubino:  True.

Joe Patrice:  But I wouldn’t take this time to kind of talk about the morality of it. We talked about this in in other contexts before but lawyers like the phrase “everyone deserves a lawyer but that’s a little bit naïve” law firms have obligations as businesses, they are brands. They have to worry about that, they have other clients who don’t want to be attached to some of this work. I mean, I’m pretty confident the board of directors of Disney does not want their name casually mentioned in the same breath as war criminals. So, these are considerations — 

Kathryn Rubino:  And we don’t talk about Bruno(ph). 

Joe Patrice:  Yeah, we don’t talk about Vlad. These are concerns that law firms need to take into account and I know there is this — I already used the world naïve but there is this mythos of “Our profession, we know everyone deserves a lawyer and we take on everything.” And that’s just not how reality plays out. You have other concerns and need to embrace that sometimes; a part of good client service is recognizing that you can’t have every client.

Kathryn Rubino:  Yeah, and I think that this — a similar issue or the same issue which is in a different context came up in the wake of the January 6 coup attempt, right? When some big law firms are very much implicated where their clients or signs and documents and Joe trying to contest the 2020 election and who your clients are matter when you are a global business. There’s also, I think a vast difference between representing that kind of mythology of “everyone deserves a lawyer,” when you’re talking about someone who is facing jail time in a personal situation, right? Versus these very savvy large businesses. I don’t think that there are also civil cases for the most part, right? They’re not criminal cases so I think there’s also a different imperative about whether or not people actually require, or how much representation or whether or not you need to be doing the representing. And so, I think that that is also a little bit different but we said it in the wake of January 6, and I think it’s also true now, that who your clients are matter. They matter to your brand and they also — that means it matters for recruitment. That’s the other part that’s very, very true, especially right now. 

(00:20:00)

Big law is — I’ve said it a million times in the last year-and-a-half. We are in the middle of a white-hot lateral market, right? And that means that little things can sometimes make the difference if you’re trying to hire more folks and the difference between you and a competitor is “oh, I don’t have to worry about this kind of sticky, Russia representation stuff. Why wouldn’t that be a deal breaker? Why wouldn’t that be the difference-maker when folks are looking at stuff?” We are seeing increasingly compensation to the same, a lot of benefits are kind of leveling out here. When you talk about things like these kinds of nebulous ideas like what is a firm culture, the clients and the kind of work you do help to create that. 

Joe Patrice:  There are so many levels of this and we’ve had — I personally know, when Ellie and I, we are hosting the show, we devoted an entire episode to this question of, “where do you draw the line? And to what extent is your professional obligation to give everyone a zealous defense, run afoul of your business, obligation to worry about your other clients?” and you know, like there are criminal defense lawyers who will take on everybody. 

But part of why they do that is, their job is to help people, who are rightly, wrongly, fairly, unfairly social pariahs. So, they do want to have those clients because that is a service to the rest of their clients to show that they are willing to take on that work and able to help those folks. That is not the same thing as somebody who’s representing. I keep bringing up Disney, but I mean that’s a brand that has to worry about that sort of stuff. Then there’s questions of “to what extent are you representing somebody?” We talked about this a lot with the Hogan Lovells(ph) situation where at the Supreme Court they were working with Nestle in a child slavery discussion, but the specific question that was being litigated was a very hyper-technical one about statutes and what they mean. 

Does the fact that the circumstances surrounding it have kind of an unsavory cloud change the motivations and the pressures? It’s a very interesting question and it’s one that I feel. Lawyers often blow off and because they’re so in love with this image of themselves as these crusaders. But it’s not how the real world works and I think it’s worth having that conversation and thinking about what do you do in these sorts of sticky situations.

Kathryn Rubino:  And the other kind of side to the coin, I think is the — some firms, Paul, Weiss in particular, has started a bunch of pro bono work for Ukrainians and I think that that’s sort of the — both in terms of a PR, but also in terms of the legal work that’s being done. That’s kind of the other side of the coin is marshaling the resources of big law to help.

Joe Patrice:  Yeah. Not a surprising move. Paul, Weiss is — 

Kathryn Rubino:  The very own brand(ph) for them. 

Joe Patrice:  Historically, Paul, Weiss did pro bono work during World War II for Jewish folks fleeing Germany. This is very much what this firm has done historically. There are a number of organizations that Chairman Brad Karp’s — an e-mail last night to the firm identifying some organizations that they are giving donations to and offering pro bono legal services to help that are focused on refugee support. This is another year, right — this is the other side of this and something that more firms need to step up because they have firms offer something valuable and they could be using it here.

Kathryn Rubino:  Absolutely.

Joe Patrice:  I guess, let’s finish up on a story that did reasonably well last week, talking about the Virginia Bar Exam. 

Kathryn Rubino:  Okay.

Joe Patrice:  The Virginia Bar Exam for those of you who don’t know, has a policy that that you can only take it if you’re dressed up.

Kathryn Rubino:  Professional garb, right? So, suit for — 

Joe Patrice:  Suit and tie for men to take the test. For women, pant, suits are allowed, which is nice because historically that wasn’t true.

Kathryn Rubino:  Progress.

Joe Patrice:  There was a day wear dresses were required for women taking the tests. So, you know, we’re moving on up there.

Kathryn Rubino:  Ever forward. I mean, of all the instances in your life, where one, it has to done a suit, I feel like taking the bar exam is the dumbest(ph) pretty easily, right? Court appearances; sure, weddings; cool, funerals; understandable, taking a test; dumb. 

Joe Patrice:  Yeah. This is a policy that is so retrograde and it’s — 

Kathryn Rubino:  Also, classist, right? Like, make sure you have a suit before you’re even allowed to be a lawyer, right? It assumes a lot of things about folk’s ability to pay for things like that in a world where they can’t actually work yet because they haven’t passed the bar exam yet which is really dumb. 

(00:25:08)

Joe Patrice:  Yeah, and it reflects the way in which bar examiners and licensing doesn’t understand the modern practice of law. As a litigator, sure, you will wear suits. When you go to court. There are wide swaths of the legal profession that never ever, ever find themselves doing that. There are tax lawyers that don’t even leave their office that have never seen a client that just some, some rain making corporate partner flings work into their office like a bucket of fish heads and nobody knows what happens in there but — 

(Voice Overlap)

Kathryn Rubino:  We have the answer.

(Voice Overlap)

Joe Patrice:  — work product comes out. There’s no reason why everybody needs to dress up. It’s just like weird cosplay

Kathryn Rubino:  Its retrograding classes.

Joe Patrice:  It’s a power-play of these board-examiners just being like, I can make you treat me like I was a judge.

Craig Williams:  Also, given COVID, professional dress has been button-down shirt and basketball shorts. So, I feel like if somebody went there wearing that, that should count because the last two years, that’s been the case.

Joe Patrice:  Law firms have been on business casual for years at this point. 

Kathryn Rubino:  Yup, I was told just make sure you have a suit in the back of your office door just in case.

Joe Patrice:  Yeah, just in case.

Kathryn Rubino:  Never get worn. It stayed there. 

Joe Patrice:  Yeah, so if it were a better reflection on how the actual legal profession works then, at some point in the middle of day two of the exam, they should say “All right, everybody quickly put on your suit” for the next question and then you can get — 

(Voice Overlap)

Kathryn Rubino:  — yeah.

Joe Patrice:  That would be at least track reality a little bit. Yeah, I know it’s unfortunate that this still happens. Hopefully, this will change but it will only change if people out there run for leadership positions inside these(ph) organizations, unfortunately.

Kathryn Rubino:  That’s something. 

Joe Patrice:  If there is nothing else, I think we can wrap this up. 

Kathryn Rubino:  Wrap it up friend.

Joe Patrice:  Thanks everybody for listening. You should be subscribed to the show. So, you get new episodes when they come out. You should give reviews, stars, also write something, it helps more people hear it. You should — 

(Voice Overlap)

Kathryn Rubino:  — it’s all about the algorithm.

Joe Patrice:  It’s all about algorithms. You should check out Kathryn’s show, The Jabot, I’m also a panelist on the Legaltech Week Journalist Roundtable. You should check out the other shows by the Legal Talk Network. You should be reading Above the Law so you see these and other stories before you hear our recap of them on the show every week. You should follow us on social media, I’m @josephpatrice, she is @kathryn1. He is @rightsforrent. You should be checking out our sponsor, Posh. 

Craig Williams:  And if you’re thinking of a thing in the comment with algorithm, maybe you could put a sound effect we should add to the box. 

Joe Patrice:  Oh right, yeah, let us know, I’m always eager to get more sound effects so let me know what would be fun.

Craig Williams:  To Kathryn’s — 

(Voice Overlap)

Kathryn Rubino:  — I got an e-mail from our listener who said that I was write about this by the way.

Joe Patrice:  Oh yeah, you did get somebody you are, yeah.

Kathryn Rubino:  Thank you, I read it. I appreciated it. 

Joe Patrice:  Fair enough.

Kathryn Rubino:  And more people, I’m sure the silent majority is with me. 

Craig Williams:  Well, silent people don’t speak up. We’ll see you on next week. 

Kathryn Rubino:  All right. Bye all.

[Music]

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