Clarence Thomas: The Convenient Textualist

Episode Notes

Transcript

[Music]

Joe Patrice: Welcome to another —

Joe Patrice: Hello.

Kathryn Rubino: Hey.

Joe Patrice: of Thinking Like A Lawyer.  Okay, still not professional enough as a group to get through the literal first sentence of the —

Kathryn Rubino: I mean it’s our bit now.  Now we’ll be unprofessional if we ignored it.

Joe Patrice: Maybe.

Chris Williams: If consistency of the work of amateurs.  We have a thing.  We do the thing.

Joe Patrice: So, this is the Above the Law podcast.  I’m Joe Patrice from Above the Law joined by Kathryn and Chris.  We are going to talk about some of the top stories of the week that was in the legal universe as we usually do.  That said, we also usually — because this is all about standard practice, I guess, is what everyone’s telling me.  So, we also usually begin with a little segment that we call small talk that we signal in, that we bring in with a bit of fanfare.

Kathryn Rubino: That’s true.  And I don’t even get mad at anymore that you wait till I speak before you play the fanfare because you like to interrupt me specifically.

Joe Patrice: No, that’s not true at all.  I just hit it when Small Talk begins.  The fact that you tried to start small talk before the official announcement, is your own fault.

Kathryn Rubino: So, I should just wait dead air style?

Joe Patrice: So, that I can play the sound effect and then we can move on properly.

Chris Williams: And Joe, the fact I do feel like he’s an equal opportunity interrupter.  That’s all.

Kathryn Rubino: So, who wants to talk about their weekend?

Joe Patrice: Mine was exhausting, that’s all.  I just — I’m really busy these days.  I see no light at the end of said tunnel of busyness either.  So, it was really unpleasant.  But what about everybody else?

Chris Williams: You always bring the joy, Joe.

Joe Patrice: I know.

Kathryn Rubino: He really deserves like some Eor vibes over here.

Chris Williams: (00:02:00)

Kathryn Rubino: Don’t bother.  I was also busy.  I actually had my baby shower this weekend.  So yeah, having a baby pretty soon and my mom, sister and childhood best friend, and mother-in-law threw me a fantastic baby shower.  It looks like my house threw up orange because the theme was welcome cutie.  Like cutie oranges, which is super adorable for sure but there is a lot of orange still in my house, which I’m not opposed to.  But I may have to temporarily at least root for the mess.  So, this all makes sense.

Joe Patrice: I thought you were telling us you were leaving about the law to join Reuters – orange anming than your video here.

Kathryn Rubino: You see, I think of relativity.  I think when I see all these orange circles everywhere.

Joe Patrice: Yeah, that’s true.

Kathryn Rubino: Let’s bring it back to legal tech you guys.

Joe Patrice: Yeah, we should see it for relativity who wants to sponsor you.

Kathryn Rubino: Well, I have the paraphernalia for it.  That’s what I’m saying.  How about you Chris, what you do this weekend?

Chris Williams: I’m having a thing where I don’t remember if I’ve ever lived a life.  Oh, I didn’t think.  So, here’s the thing, I celebrated (00:03:23) New Year.  So –

Kathryn Rubino: Happy New Year.

Chris Williams: Right?  So, in Cambodia the New Year celebration is like three days long and how — it’s funny thing about time in different cultures.  So, in the States, the year is 2023 AD, because Jesus’ like death was the starting point.

Joe Patrice: That’s not how that works.

Chris Williams: I thought it was – and on dominate they are lawyer.  I thought it was –

Joe Patrice: Yeah, theoretically, that was a bad calculation of his birth, which was incorrect as he was would have been –

Chris Williams: In March or something.

Joe Patrice: All the other things.  No, it would have been in negative four.  It would have been in 4BC.

Kathryn Rubino: But their intention has been originally to do it off of the birth of Christ, not the death of Christ.

Chris Williams: Anyway, it’s Jesus anchored, we get it.  So, Cambodia is a –

Joe Patrice: — Jesus anchored.

Chris Williams: Yes, it’s more – then I don’t (00:04:27).  Now so, I’m far for everyone.  That was a horrible risk –.  Anyway, I think a year here is like 1555.  So, it’s cool to have a new year and not have see people have like the 2000’s glasses.  There were no glasses.  But if there were New Year’s glasses, it would have been –

Kathryn Rubino: I love that that’s the thing that annoys you about New Year celebrations in the states, is the weird glasses.

Chris Williams: Well, here’s the thing.  Annoy hasn’t been the word except for 2023.

(00:05:00)

I think I saw it the wave of new year’s glasses they have this year.  It was really low effort.  It was like 2023, and like, the eyes were in like part of the two parts.  It was like, it didn’t look right.  2020 was a great year for New Year’s glasses makers, but then after that, it just sure as hell.

Kathryn Rubino: They should’ve stopped then.  They should’ve like, listen, this is going to be the best that it’s ever going to be in 2020 and then ended it there.

Joe Patrice: I actually saw somebody wants say that every year, I go to New Year’s thinking, well, they can’t turn this year into glasses and every year I’m surprised.

Chris Williams: It turns out the path which is the sense that we have a new year’s glasses but you find out which culture has the easiest year to make glasses out of.  So next year, it’ll be like 1556 and also, they will sell in the states and they will be like, okay, you cultured now.  Not that it’s just some (00:05:51) 2024.  Well, enough of that.

Joe Patrice: Yeah, no.  I think that can be the whole thing.

[Music]

Chris Williams: Well, you can find us on Legal Talk Network.

Joe Patrice: That’s the wrong sound effect for the end.  So, yeah, that’s the end of Small Talk.  We can now talk about Big Talk.

Kathryn Rubino: Big Talk.

Joe Patrice: Yeah, right.  This has gone steadily off the rails.

Kathryn Rubino: I think it’s exactly where it’s meant to be.

Chris Williams: I like it though instead of big talk – instead of Small Talk be like, (00:06:27).

Joe Patrice: I mean I do have that.

[Music

So, we can absolutely do that.  All right.

Kathryn Rubino: I think the biggest of talk.

Joe Patrice: Yes.

Chris Williams: Yes.

Kathryn Rubino: Is pretty, pretty big ethic scandal going on again.  I feel like that little intro, something I’ve said multiple times over the course of this podcast in the last six months in particular, but –

Chris Williams: Wait, the last one on issue?

Joe Patrice: No.  Well, yes actually.  But hey, hold on.  Let’s stop and just assure people that you’re not stuck in a time warp.  This was in fact the top story we talked about last week.  And we’re just going to talk about it again.

Kathryn Rubino: There’s more.

Joe Patrice: Because there’s more.

Kathryn Rubino: There’s more.  Clarence Thomas still has ethics issues.  What’s the latest on the Thomas Scandal, Chris?

Chris Williams: The other law that he — I mean it’s still like a not reporting flavored.  So, this one is more details about the generous and totally not influencing gifts of Mr. Harlan Crow.  Is it Harlan or Batman?

I forgot, just some rich dude.  And it turns out that he, (00:07:40) bought Justice Thomas’s mom’s house.  His mom still lives in the house.  The house and the plat sort of had about a market value of see like, let’s see 45,000 Crow bought it all together, like about 140, 150.  So, shout out to Thomas being a landlord, a land flipper.  Son his best friend is –

Kathryn Rubino: Trye negotiator.  Clarence Thomas.

Chris Williams: Yeah.  So, his best sold one of the defense about the – not bribery.  That’s what happened over the last 20 years.  He was just loke, oh, this is just too broad with money taking care of each other.  And it is really close.  And you can tell they were close because to his friend, his mom’s a landlord since he owns the property.  And by the way, the additions that he made to the property were about – this is again Crow.  Were about the value of the house in the land itself.  So, keep the money in your family and not own the record.

Kathryn Rubino: Yeah, exactly.  I think the lack of disclosure is one of the most disturbing elements of the stories that disclosure for thee and not for me is the kind of way that Clarence Thomas has gone about all of these deals.

Joe Patrice: There are rules requiring.  There are laws requiring disclosure of the stuff.  There’s no real repercussions into not following these things as turns out.  Clarence Thomas has now said that he will revise past disclosures to include all this but he –

Kathryn Rubino: Because he got caught.

Joe Patrice: But he personally felt like the issue was that he took a loss on these deals and therefore didn’t think he had to disclose them.  This of course, makes no sense.  If you were getting – if you got involved in a land deal with somebody that you thought you’re going to make money on and then you didn’t, that doesn’t mean that you weren’t influenced and having an influence when it comes to court decisions that may impact that deal, right?  You had a financial stake.  The fact that it didn’t work out is irrelevant and obviously, that’s why the rule doesn’t have a line in it that says profitable or loss.  You have to disclose it.

Kathryn Rubino: I mean, that to me is absolutely one of the most damning aspects of this whole revelation is that, he’s really bad at statutory interpretation.

Joe Patrice: I think it’s somebody.  I think it was Professor Lip

(00:10:00)

and I’m not sure.  But somebody this morning made the point that last term, Clarence Thomas said that if your court-appointed lawyer, Ms. Reed’s, a statute, you are responsible and cannot appeal that.  However, Clarence Thomas cannot read what happened in this statute and says, Yeah, sorry, my bad.

Kathryn Rubino: Shrug emoji is the only answer.  I guess I’ll redo it.  No consequences.  Those are completely off the table in any realistic way because the only way to have consequences involves a detailed political process.  There’s not 67 votes for let alone control of the house, which that would have to happen first before there’s any sort of actual consequences here.  And he can’t read statutes.  By his own admission, either he willfully knew what it said and decided not to disclose it which you know —

Joe Patrice: It’s probably the actual rates on her.

Kathryn Rubino: That’s what I’m thinking right here.  Or he’s very, very bad at his job.  Like so bad at his job that, that it’s in and of itself, it’s disqualifying.

Joe Patrice: Yeah, it’s interesting.  I thought that ProPublica like a put out that big report of all of these issues and then waited for it to become the biggest story ever.  And then drop this one.

Kathryn Rubino: More information.

Joe Patrice: I was like, did they just find this one out or were they holding back on this, which either way I’m impressed.

Kathryn Rubino: You know, obviously, I don’t know.  I don’t have any contacts there, but I wonder if they were waiting for –

Joe Patrice: Anymore, yeah.

Kathryn Rubino: Yeah, confirmation or once it started to gain traction that perhaps, folks were more willing to disclose and confirm details.

Joe Patrice: Always a possibility.  That’s true.

Kathryn Rubino: There is a journalistic reason that this makes sense.

Chris Williams: What I hope the take away from this is that the people, that the they go low people high people will finally shut up.  Because this is a clear example of like, for a very long time, Thomas and friends have been the rule of law.  We have to do things by the book people.  Here’s what’s the moral authority.  People say, oh if we aren’t holding ourselves accountable, when they do things, we’ll give him excuses to be different.  We now know, they’ll just say, oh, oops my bad, check with my friends.  What do you do?  So, I think we need to stop playing the accountability game.  That’s all.

Joe Patrice: Yeah.  It is weird.  And also, I’d like to take it to a little bit bigger of an issue.  When that line about that he viewed it as an individual’s fault that their lawyer screwed up when he writes an opinion.  There’s something to be said for this speaks to the nature, the problematic nature of textualism as a concept too.  And obviously, he’s an originalist, but these are intertwined theories that some people draw from both.  But these statutes, if he can be confused by the statute, which I don’t think he is.  I agree with you that it is he’s probably being a bad faith actor.  But let’s give him the benefit of the doubt.

The benefit of the doubt is, he was confused by the wording of the statute.  Well, that’s a pretty good reason not to hold people to the letter these statutes all the time, right?

Kathryn Rubino: And he is an infinitely better place to understand the statute.  As someone who has been educated in the law, specifically.  And has literally been one of the nine authorities on the law.

Joe Patrice: For 30 years or so.

Kathryn Rubino: 30 years.

Joe Patrice: Yeah.  And so, there is a philosophical moment here that if you take him at his word, it kind of gives the lie to the whole intellectual underpinnings of textualism anyway.

[Music]

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Joe Patrice: All right, so the other topic we have is one of our least favorite, but still a good sound effect.

Male: Layoffs.  Don’t talk about layoffs.  You kidding me?  Layoffs?

Joe Patrice: So, we’ll be of more layoff news.

Kathryn Rubino: Yeah.  Sherman and Sterling have laid off some staff members, which earlier in the year they had done a round of staff and associate layoffs.  And you know which is the latest of a series of Bad news, financial news for the firm.

(00:15:00)

There’s been lots of chatter about what’s the end result will be at the firm if there will be more layoffs, still unclear at this point, but we’ve also have information about firms delaying start dates for associates.  Cooley is doing that now.

We already knew that Gunderson was doing that which means that these folks that are currently in law school, go set to graduate next month.  They already have for the most part, their jobs lined up.  They know which big law firms they’re going to go to and one of those firms, Cooley has said you were supposed to start in the fall.  You’re actually going to wait until January of 2024.

Joe Patrice: Right.  Which, it’s not like your student loan payments start immediately after but –

Kathryn Rubino: he got six months.  So, this pushes that past, that market.

Joe Patrice: Yeah.  It definitely — and even if it didn’t push it all the way but past that market, it takes away a few months that you could be collecting some cash to get you through.  So, it has bigger repercussions than just your start date has been pushed, because especially with you have gone to a law school that allows you to work at a firm like that, your bills are fairly significant.

Kathryn Rubino: And the other thing is, you probably have options, right?  Someone who went to a firm like Cooley probably had other options as well and so getting sort of cut off at the knees this is, a real problem for folks, and we’re seeing these repercussions or reverberations throughout the industry.  Even firms that are much more.  So, Cooley and Gunderson are both west coasts, very tech-heavy kinds of firms.  That’s where we’ve seen the majority, not all, but the majority of these sort of austerity measures happening.

But we’re even seeing the implications for sort of East Coast firms.  Milbank came out last week and sent an email to their incoming class saying, you may have heard lots of rumors about start dates and pushing them off.  And you might be worried given the state of the market generally, but don’t.  Your job is very safe.  Rest assured, we have not changed our start date, you’re still expected on September 18.

Joe Patrice: Yeah, and I do think that was an interesting move and I thought with that, I thought of some of these firms that we were hearing gloom and doom from some corners.  And then we were seeing the people who were giving interviews to American lawyer, talking about how have they actually did really well last year.  And I have very much been reading those as kind of the negative space there that I’ve been reading those saying that those particular firms are trying to make clear things maybe bad out there, but we want to get ahead of the fact that we are not those places and so be very focused on who’s not having those interviews published in a lot of ways.

And this kind of goes with that.  I think that there’s a sense, a mood that there’s economic problems, deals slowdowns and so on that said, I think there are several firms that that is not impacting and they are trying and doing whatever they can to make clear the folks know that.  And I think the Snowbank email is an example of that.  Some of these American lawyer interviews are examples of that.  And it’s not — I mean, American lawyer interviews everybody for their financials.  But the ones that are turning them into articles and promoting them.

Kathryn Rubino: To get out of their way saying, hey, we’re aware and — and I think you’re right but something that I appreciated about the Milbank move is that it’s not directed to the industry at large, but rather the specific actors who are the most worried and the most anxious potentially, because they’re not yet really part of the industry.  They probably don’t remember if they ever had access to the American lawyer login from their firm.

And that kind of direct communication, I think speaks to reaching out to folks who are potentially anxious and make sure.  And I think this kind of goes to those little things that help to build a culture.  You feel much more reassured when you’re at a firm that goes out of the way and saying, you might be feeling a certain way, here’s the information you actually need to know.

Joe Patrice: Right.  I think that’s true.  I still think that barring the Federal Reserve is screwing us even worse.

Kathryn Rubino: Which seems like.

Joe Patrice: Which they seem hell-bent on doing.  No matter how good things look, they see what they’re going to destroy it.  But barring that, I do think that deal momentum is going to pick up in the second half of the year and some of these firms that are hemorrhaging associates because they had suffered the first for the last two or three quarters are going to see that as a problem.  And the people who have held the line only come out on top.  That said, we’ll see.  I think que 3 and 4 should be returning to normal, but I don’t know.

Kathryn Rubino: We will see.

(00:20:00)

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Joe Patrice: All right, so we had a preview of the US News rankings last week that just showed us the top 14 law schools, a completely arbitrary cutoff but it’s the cutoff they’ve used forever.  So, we got that.  There were some interesting things.  Bunches there were basically eight million ties and UCLA got ahead of Georgetown.  That said, they were supposed to release the full list tomorrow as we’re recording this.

Kathryn Rubino: April 18th, I believe it is or was, midnight.

Joe Patrice: Right.  And with that said – and that is not going to happen now.

Kathryn Rubino: Yeah.  They pushed it back for at least a week until April 25, I think is the date that they’re currently touting and it’s not particularly clear why.

Chris Williams: I think they’re having bets on how many times they could tie three schools in a row and still be a numbered list rather than just vibes.

Joe Patrice: Yeah, I did feel like the top 14 was really, here’s four rankings that were dividing these 14 between.  But yeah.  Well, there’s some speculation that there might be some ABA bar or passage data that was misapplied.  But the other argument is that a lot of what I think is happening is the US News had to come up with a new methodology this year because a bunch of these schools through it hissy fit over how the system ranks and look, we do not defend the US News rankings.  We have our own law school ranking that we think is actually a little bit better.

Chris Williams: A little?  Let’s not be modest.

Joe Patrice: Yeah, fair.  But US News does what it does.  And that’s whether you like it or not, they’re doing their best to be an objective measure.  And a bunch of law schools decided they were going to bolt on this and boycott giving certain bits of data to US News.  US News therefore had to come up with a whole new way of doing this and now these schools I think are irritated that it didn’t work out as well for them and it’s like well, the consequences of your own actions.

Kathryn Rubino: Well, yes and no.  Again, it could very easily be math.  That is the problem.  We don’t actually know.  But the other part of this is that historically, US News has absolutely changed their methodology in response to pressure from law schools.  They dropped to diversity rankings a few years ago once the embargoed, once they did their preview and that change some stuff.  So, this is a method that has worked in the past.  So, from a law school’s perspective, if there’s data that you don’t think is correctly applied or given too much weight, I don’t, I mean whether it’s their own consequences or not, it seems like something they have a responsibility to their kind of constituents to pursue.

Joe Patrice: Well, I mean in that brings us to the unfortunate question which is, why does the US News have constituents?  This should be — their constituents of anyone should be the students but who are the perspective students at least.

Kathryn Rubino: Yeah.  I mean I think you’re right.  But it is also worth noting that this has happened before.  There have been times where law school pressure has had a direct impact on US News as methodology.  So, in that sense, it’s not particularly surprising, but I think given the change, the tumult regarding the rankings, makes it much more of a bigger story.

Joe Patrice: Yeah.  I just feel like if this boycott was so ill conceived from jump and now all of a sudden — maybe it has nothing to do with it.  But frankly, the appearance that has anything to do with it, makes it just as bad.  It caused a — but it hurt those though theoretically could just hurt those schools by not getting over their data.

(00:25:04)

Instead, what happened is US News just tried to come up with some new way of doing it to get around all that.  Now people are angry about that.  It’s like every bit of this, every stage of this has been the fault of the boycotting people and here we are again.

Kathryn Rubino: US News’s statement also says that and I think because they didn’t get the data directly from the law schools, there’s a lot more inquiries from the law schools who received sort of the draft rankings already about what data they actually used and know that’s wrong because — which again, participation in the process to solve.

Joe Patrice: Right, you are.  If people were boycotting, they wouldn’t be making these shadowy guesses as to what’s going on.  I don’t know.  It was so dumb and been dumb from the jump.  And here we are now with the mistakes that the Yale has brought once again.

Chris Williams: Has anyone done a GPT Law school rankings?

Joe Patrice: Just ask GPT to rank people.  I don’t know.

Kathryn Rubino: I mean, in a weird way, the whole ranking debacle has just proven that Yale is by far their most dominant law school in the country.  What they do, other everyone feels they need to for large percentage, feel the need to follow.

Joe Patrice: Maybe that was the real ranking trick.  The real ranking trick was what if we do something incredibly stupid and see if everyone follows us?

Kathryn Rubino: Can you follow me?

Joe Patrice: And if they do –

Kathryn Rubino: And listen.  There was very little chance of repercussion on Yale specifically.  There’s still tied for one.  They’re not getting out of that spot.  So, they just proved that other people.  It’s the fact that it’s a tile lost.  I don’t think so.  There have been ties.  Yeah, I don’t think that they perceive that as a loss.  They still get to put the number one law school on all their promotional materials according to US News and I think that that is that’s the benefit.  They just said hey, wouldn’t it be cool if we all jumped off this cliff watched a bunch of people do it and stood at the top of the cliff still.

Chris Williams: That doesn’t like Yale over here.  I’m keeping the book.

Joe Patrice: Said all that video game lemmings.  Which do you know that, that all was completely made up in a Walt Disney screw up.  If you ever heard this story?

Kathryn Rubino: No, I don’t know the story.

Joe Patrice: So, the whole idea that Lemmings jump off cliffs and all is from some like they don’t at all.  It’s from some world – some Disney –

Kathryn Rubino: Walt Disney.

Joe Patrice: Walt Disney nature documentary that they did like back in the 50s and 60s.  They would do those nature documentaries.  And they incorrectly saw this event happened and described it as this is a thing Lemmings do and it became part of the cultural Zeitgeist despite not at all being true as it turns out.

Kathryn Rubino: So, who does jump off cliffs?  There was video of something jumping off cliffs.

Joe Patrice: Yeah, I mean, it was not because that’s a thing that they do, which makes sense, right?  Because it would not really be an adaptive species.

Kathryn Rubino: It does seem.  It does seem like that’s a real problem.

Joe Patrice: That would not relate bold well for their continued survival.

Chris Williams: Speaking of, if you’d like to jump off the ATL cliff and keep following us, I don’t know, I’m going for it.

Joe Patrice: You’re going to try the transition us out.  Was that what you’re trying to do?  Okay, interesting.

[Music]

Joe Patrice: That was the gong show for that attempt.  Just not smooth enough.  You got to work on your segways.  Anyway, with that said, we will, however, with that, thanks for listening.  You should listen to the show every week and you could be helped by doing that by subscribing to it.  So, you get the new upsets when they come out.  You should give out rating and review to it.  That all helps more people find the show.  You should be following other shows.  Kathryn’s the host of the (00:28:54).  I’m on the Legal Tech week journal’s round table.  There are many other shows that we aren’t on, on the Legal Talk network that you can also check out.  You should be reading Above the law so you can read these and other stories before we chat about them here.  Follow everybody on social media, the blog is @ATL blog.  I’m @JosephPatrice.  She’s at @Kathryn1, the numeral one.  Chris is @WrightsforRent, the Wrights, not the R rights.  And with all of that, I think we’re done.

Kathryn Rubino: Peace.

[Music]

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