This week’s top stories were all about the judges. Should judges be held to a higher standard when it comes to vaccines? Should they at least endeavor to hire clerks that don’t have resumes drenched in red flags? How much should clerkships matter anyway? And we got judges making some tough talking threats. All that and a couple of sound effects — what more could you ask for?
Special thanks to our sponsors, Lexicon and Nota.
Joe Patrice: Hello and welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. That noise you heard there was Kathryn Rubino.
Kathryn Rubino: Noise? That’s how word discussing me?
Joe Patrice: You just made a sound there.
Kathryn Rubino: It was words. It wasn’t a guttural moan or something like that. Like the guy who’s trying to engage you. I mean, I was mostly trying to annoy you.
Joe Patrice: Right. I feel like that was more of what was going on, anyway —
Kathryn Rubino: Still wasn’t more than just a noise.
Joe Patrice: Well, mission accomplished. So, we’re here as usual to discuss some of the big stories in law over the last week as usual.
Kathryn Rubino: Before we get to that, I know it’s your favorite part of the day.
Joe Patrice: What would that be?
Kathryn Rubino: Small talk. Yeah, I knew that was coming.
Joe Patrice: Yeah. I know. I’m glad that you’re leaning into it though.
Kathryn Rubino: I’m not leaning into it. I just recognize that it’s going to happen. So, if I’m ready, it’s slightly less annoying.
Joe Patrice: What’s up in the small talk?
Kathryn Rubino: We had a long weekend.
Joe Patrice: We did.
Kathryn Rubino: Our company celebrates indigenous people’s day. So, we were off on Monday. That was a good time. And I went to see the new Bond movie.
Joe Patrice: Interesting, okay.
Kathryn Rubino: As we’ve discussed on multiple occasions at this point fully vaccinated. So, I feel like going back to the movie theater is an acceptable past time.
Joe Patrice: Is this your first trip back into a real theater?
Kathryn Rubino: I’d seen the Marvel movie, the –
Joe Patrice: Shanty (ph).
Kathryn Rubino: Yeah. I was going to say Black Widow, too actually it’s my third. My third venture back. I do feel like it has to a big movie that you think you want the whole big screen because most places are allowing you to have streaming options either on the same day or slightly after in a way that — I’m sure movie theaters are not super thrilled about it, but I did see the new Bond’s movie is apparently the last Daniel Craig Bond movie. It was good, not great. I was really hoping for great, but listen it was a night out with some friends. I enjoyed that part of it.
Joe Patrice: That’s exciting.
Kathryn Rubino: It was exciting. Did you do anything fun and interesting this long weekend? Catch up on sleep maybe?
Joe Patrice: I wish I had slept. No, I did. What did I do? I did a lot of debate judging. You know that I do this because we both coach college debate on the side because we did it and feel like it’s a good volunteer way to give back to those folks. So, I did a bunch of judging about antitrust law, which is the topic of the year.
Kathryn Rubino: It is. As you all know, I used to be an antitrust lawyer.
Joe Patrice: This must be fun for you.
Kathryn Rubino: It’s the opposite.
Joe Patrice: Okay. That’s about right.
Kathryn Rubino: It is a bit of a frustration as some of the nuances and details of antitrust law are rendered a little flat by debates that I have seen this year. Listen, kids are learning beginning of the school year still, good times were had by all.
Joe Patrice: All right. We’re ready to call the ball on this.
Kathryn Rubino: If I say no, will you not to play that sound?
Joe Patrice: Correct.
Kathryn Rubino: Okay, then no.
Joe Patrice: So then, what’s the next topic? You’re wrong. This is the end of small talk of which brings us into of course, our next segment, the running of the clown. This week’s running of the clown’s addition is the January 6 commission has put out all their subpoena requests. Steve Bannon is saying that executive privilege means he doesn’t have to respond, which was an interesting take given that he would –
Kathryn Rubino: He wasn’t.
Joe Patrice: He was not working in the executive at all at the time.
Kathryn Rubino: That is a bold claim.
Joe Patrice: It stretches it quite a bit.
Kathryn Rubino: Far more than you would imagine a conservative about the law might be comfortable with but here we are.
Joe Patrice: The last several years, executive privilege has been invoked for reasons that seem – actually, let’s be fair, it has never been invoked. It’s always been wildly gestured at of, “Well, I’m just not sure that might be covered by executive privilege” and no one then ever tests that or finds out but that way, they don’t bring themselves to the situation of having it actually be able to be challenged. They just kind of gesture at it and move on but extending it to somebody who had no involvement with the executive branch at the time is, old claim.
Kathryn Rubino: But he wanted to. He wanted to still have that job.
Joe Patrice: He had conversations with the executive branch, but he was not employed. Which means —
Kathryn Rubino: I get it, it’s a bad argument.
Joe Patrice: Look, there’s a lot of people on the Supreme Court who believe in this unitary executive theory that’s basically believes presidents are God Kings, but —
Kathryn Rubino: But only for four years.
Joe Patrice: Theoretically. I think it’s hard to pitch even them believing that the executive privilege extends to people who were never there.
Kathryn Rubino: Sure. If this gets to the Supreme Court, which obviously there’s a lot of things about to happen before the Supreme Court weighs in. It’s not going to be nine-o.
Joe Patrice: No, maybe not. I don’t know. This one’s so extreme. I feel like maybe —
Kathryn Rubino: I really appreciate that you still have a belief in the system.
Joe Patrice: I don’t believe this. I just think that the — what’s the downside risk to anybody of saying, “No, it doesn’t cover people who weren’t employed there.” I feel like that’s one that they’ll just give in on. They might extend it to some of these other random hacks who also have flimsy claims, but at least worked for the executive branch at the time. I feel like this one’s just such a bridge too far.
Kathryn Rubino: Bridge Too Far. We can only hope. We can only hope that this claim will not succeed but fingers crossed. Are we doing it again at the end too? This one annoys me less. I got to be honest.
Joe Patrice: Really. It is by design, a more annoying sound.
Kathryn Rubino: I think it’s just so ridiculous that I find it — I still find it just very funny.
Joe Patrice: Uh-hum. Interesting.
Kathryn Rubino: That is an objectively humorous sound in my mind.
Joe Patrice: Fair enough.
Kathryn Rubino: Maybe I just like clowns more than you do.
Joe Patrice: It’s impossible.
Kathryn Rubino: I used to collect clowns as a kid.
Joe Patrice: Really? So, you’re weird. Okay.
Kathryn Rubino: I don’t know. I kind of liked them and then my grandma started buying me a bunch. I don’t know. I don’t think it was like a plan that I had.
Joe Patrice: Most people are afraid of clowns.
Kathryn Rubino: I don’t think most people like there is still like — this clown is still like — there’s a college for it and everything.
Joe Patrice: Columbia.
Kathryn Rubino: Wow. No, they Ringling Brothers.
Joe Patrice: Yeah. So, we got in our NYU Columbia battle of the day.
Kathryn Rubino: You won that exchange. Okay. I’m not sure everyone agrees.
Joe Patrice: All right. Well, let’s hear from our friends at Lexicon right now and then get in to the day’s topics.
Here’s a message just for the attorneys out there. So, you passed the bar, joined a firm, or even built your own. Now, are you finding out that you’re doing more administration than actual law practice? Lexicon can help. Lexicon is a legal services and technology provider with over a decade of experience streamlining administrative tasks. Like timekeeping HR, billing, client intake, and more. So, you can focus on maximizing billable hours and increasing client satisfaction. Call 855-4-Lexicon or visit lexiconservices.com/go to learn more.
Joe Patrice: Okay, so we’re back and we’re going to talk about — we were already talking about judges. Let’s talk about some more judges.
Kathryn Rubino: I mean, there are a lot of judge stories this week.
Joe Patrice: It’s all judge stories this week.
Kathryn Rubino: Okay.
Joe Patrice: This is why I need a better gavel sound effect that could be like judge day.
Kathryn Rubino: Okay. Well, judge day to one side. I guess the first one we can talk about is the New York State Judge Jenny Rivera. The only judge in the New York State system is in non-compliance with the COVID vaccine mandate. According to people at the Unified Court System in New York, there’s only one state paid judge out of compliance with the vaccine mandate, which means they’re either unvaccinated or at very least have not reported their vaccine status to the court. Although there is sources from — I think the New York Post reporting say that Judge Rivera’s not vaccinated and indeed, over the summer before the vaccine mandate requirement happened, they actually had to rearrange the court room so that she was sitting by herself because the rest of the judges were fully vaccinated.
She apparently refuses to get vaccinated or at least report her vaccine status. So, that’s not great. And the thing that really annoyed me about this is some of the folks, as part of the court system was saying, “Well, she can be remote. I don’t see the harm here.” There’s a societal harm when people who are able to be vaccinated or not being vaccinated, right? Like kids are getting sick. Some kids unfortunately are dying of COVID-19, folks that are transplant recipients are not particularly well-protected by the vaccine. There are people — vulnerable peoples that are hurt because of a lack of vaccination in this country, even though it’s widely available. It’s free. We should all just be vaccinated already. It seems like a bad standard for a judge.
Joe Patrice: This brings to another question which is are their heightened obligations if you’re a public officer, someone who is in supposedly entrusted by the government to have good decision-making abilities. Is there more of an obligation for you to be doing your part to set an example? And I frankly think there probably is. I view this as very much an ethical question that she’s on the wrong side of. I feel like this reflects badly on not just the profession but her judicial temperament.
Kathryn Rubino: (00:10:47) having her make a decision about a case I was working on.
Joe Patrice: I know those are strong things to throw around but that’s definitely my takeaway from this is that I no longer feel as though she’s representing the good conduct I would expect from a judge.
Kathryn Rubino: And the other part of it is she is a public servant in that way. And there are folks who are taking the stand against the vaccine and are being fired from their jobs, which I think is the correct move. Nurses who don’t believe in the vaccine should —
Joe Patrice: Well, certainly people who interact with the disease probably need to — even more so than anyone else.
Kathryn Rubino: Public school teachers in New York are part of a vaccine mandate, and they can’t do that or being fired not given the option to do their jobs remotely. And it seems that there’s this white-collar carve-out that happens in a lot of different instances, but because there’s more theoretical flexibility for someone to dial in remotely that she’s allowed to keep her job and be in anti-vaxxer supposedly versus someone who’s like a teacher or someone who’s hands on the ground and they don’t have that option. Not that I think anyone should be an anti-vaxxer, but it also furthers the white class privilege that exists.
Joe Patrice: At least especially in the early days and it still is carrying on. In the early days, this pandemic very much was a class-based pandemic. Those of us who are make our living making jokes about lawyers on the internet, we are able to stay home and folks who had these real interact with other people like physical labor sorts of jobs, they just weren’t able to do that, and it meant that it spread like wildfire through there and we were largely sheltered. Now, it’s changed with the vaccine somewhat but as you point out, there are still some level of class distinction.
Kathryn Rubino: And listen, big laws had a great 2020 on track for a great 2021 because they have that flexibility of being able to do work remotely and online. So, I think it’s definitely something that the industry as a whole gets the benefit of and I think important to call it out when it happens.
Joe Patrice: It’s one of those things like most of our listeners I assume have some connection with the legal industry and it’s something that we–
Kathryn Rubino: One would imagine is the legal industry podcast.
Joe Patrice: It’s one of those things that we don’t recognize enough the privilege we have and it’s one of those good reasons why you went to law school.
Kathryn Rubino: I did go to law school.
Joe Patrice: And you went there to —
Kathryn Rubino: To be an accountant is why I went.
Joe Patrice: No, it’s interesting you didn’t for that reason. You went to law school to be a lawyer, not an accountant, take advantage of Nota and no cost IOLTA management tool that helps solo and small law firms, track client funds down to the penny. Enjoy peace of mind with one-click reconciliation, automated transaction alerts, and real-time bank data. Visit trustnota.com/legal to learn more. Terms and conditions may apply. All right. You were the keeper of the judge stories this week. So, what other judge’s behaving, not all of them were behaving badly, I guess.
Kathryn Rubino: Certainly some questionable behavior on the part of Judge William Pryor.
Joe Patrice: That goes without saying. For those who aren’t plugged into the legal system, this guy’s been trouble for a while.
Kathryn Rubino: Do you want to give a 30-second–
Joe Patrice: Judge Pryor is often discussed as a shortlist. I’m actually frankly surprised. He is not currently on the Supreme Court. I really thought he was the person they were going to give Gorsuch’s seat to. He’s always on those shortlists and it’s a little weird that he didn’t get that job and makes he wonder how he must interview. But speaking of interviews, he interviews people and makes some bad decisions.
Kathryn Rubino: He does. So, Above the Law actually broke the news that one of Judge Pryor’s clerks for the 23-24 year is Crystal Clanton.
Joe Patrice: That name sounds familiar.
Kathryn Rubino: It does. She’s still in law school, but we’ve actually written about her several years ago before she was a lawyer because she used to work for Turning Point USA, the very conservative, pack — a student pack and was let go parted ways after the New Yorker broke a story saying that she was texting co-workers, a bunch of bigoted messages including — in all caps, “I HATE BLACK PEOPLE.” Which terrible but not necessarily about the legal profession. So, Above the Law may not have talked about it. But in 2018, Ginni Thomas —
Joe Patrice: Oh, she’s married to somebody.
Kathryn Rubino: She is. She’s married to Clarence. Clarence Thomas’s wife hired Clanton.
Joe Patrice: After she’d been fired over this.
Kathryn Rubino: Correct. Two racists for Turning Point USA hired by Ginni Thomas. And she very much seemed to flout her close personal relationship with Supreme Court Justice Clarence Thomas, I think as I said at the time, black person, she if not likes at least can use to the furtherance of her career. Not the end of her career. She actually got admitted and is currently a student at AS Law. That’s the George Mason Antonin Scalia School of Law for the uninitiated and now is being hired for the 23-24 term by Judge Pryor. And before that, after she graduates next year and then after graduation, she will be working for District Court Judge Corey Maze.
Joe Patrice: So, another person with some questionable decision-making skills.
Kathryn Rubino: Apparently being part of a very famous racist scandal is not disqualifying from incredibly prestigious positions.
Joe Patrice: Not disqualifying, it probably is a boon for those.
Kathryn Rubino: I definitely agree and something that I’ve been talking about is that in a Fed Soc era where the federal society is very much in control of who the judicial shining stars are on the conservative side of the aisle. And I think that this is the bona fides of true believer status. I think that that is seen as a good thing. I think Fed Soc is very concerned about advancing a very specific set of policy goals. They’re not just a debating society, no matter what their talking points say And I think that this shows – look, she’s gone through it. She’s gone through the mill. And she’s proven she’s come out the other side. And I think that the shows that she’s on the fast track to even more power and prestige.
Joe Patrice: We saw this during the Ryan Bounds judicial hearings. He was nominated for a judgeship and was withdrawn and so on. But during the scandal surrounding that, I wrote a piece about how this is going to keep coming up that these folks have this sort of behavior and their past because it’s frankly applauded. The bad behavior is rewarded because that is performative bad behavior as a young conservative is treated as sign that you’re on board. The more trolling the better. It’s at the height of gay marriage scandals, you’re running events that are catered by Chick-fil-A, which they all do. I guess this was technically the Edmund Burke society, which is a similar organization, running organizations calling immigrants toilet people, which is what they did at University of Chicago Law School several years ago, this sort of behavior is treated as a marker that you’re ready for big things.
Kathryn Rubino: Yeah. You don’t shy away from controversy.
Joe Patrice: Yeah, whatever. Federal clerkships are historically the pathway to bigger and bigger things and not just within the movement, but you get a lot of money to go work at law firms because you have these clerkships and I have heard from folks who make hiring decisions that there’s a nascent and it’s still very much small. But growing number of people who are starting now to not just see the words appellate clerkships and pull the trigger and say, well this is clearly somebody we need on our side because there’s folks now who are starting to realize that the point of an appellate clerkships is that you learn at the knee of a genius federal judge and as increasingly, these judges are being rated as ABA non-qualified. How valuable is that clerkship? We’ve always seen the words appellate clerkships and just pulled the trigger, but now —
Kathryn Rubino: An automatic like check mark, go ahead. Next step.
Joe Patrice: I think people are now starting to take the time to say, “Well, which federal judge was this?”
Kathryn Rubino: And I think that’s incredibly important. And I think that the legal profession in particular is very elitist. And I think that that is seen as a marker of future elitism. Oh, you did that, that must mean you have great grades. That must mean you’ve done this work. That must mean it must mean it must mean and I am here for it when we’re being a little bit more nuanced about it and taking out more critical glance at people’s resumes as opposed to just seeing, “Yep, eleventh circuit, next.” Of course, we’re making an offer to you and I think that the more that we hear from people who making hiring decisions, I think that that’s only going to be a good thing.
Joe Patrice: It didn’t just the district clerk level 2. There’s just so many of these judges who are even the ones who did skate by with a merely qualified from the ABA gives a non-qualified rating. They also give a qualified and then they give a well-qualified. Even ones who skated by with passing grades, increasingly. You just look and it’s just not as prestigious as some of these judges and that’s something we all need to start really scrutinizing.
Kathryn Rubino: I think that’s accurate. Things are changing.
Joe Patrice: And this isn’t just a liberal conservative thing either because there are conservative judges that I think if you’re clerking for it means you’re pretty smart. Although I think a lot of the younger ones that we’ve been seeing in the last few sessions are ones where I roll my eyes a little bit, but even with that, there are some definitely some Trump judges who I think are fantastic judges, but yeah, a lot of them are scarier. If you’re clerking for Easterbrook or something like that, I think you are qualified. I give you that pass but some of these others just — all right, what’s our last judge day story?
Kathryn Rubino: This is a pretty complicated set of facts that led to this bench slap, but the bench slap itself is pretty funny. So, I’ll try to go through the details pretty quickly. So, it started way back in 2011, this story. At the time lawyer since been disbarred, Steven Donziger sued Chevron in Ecuador got this billion-dollar judgment, then they try to enforce it in the United States. There were allegations that the decision was a result of judicial corruption and they paid off the judge and whatnot. And so, they were fighting about whether or not they could be enforced as part of that litigation. They put in a discovery request for a Donziger to turn over electronic devices. He refused. And there was sanctions, motions, et cetera. All kind of all happening. And the most recent turn of events is a contempt decision that Judge Loretta Preska had done against him and sentenced him to six months in jail. He’s currently under house arrest. He had to stay there during the appeal of this sentence, but Judge Preska said, that Donziger her husband “The last seven plus years thumbing his nose at the U.S. Judicial System, it seems that only the proverbial two by four between the eyes will still in him any respect for the law.”
Joe Patrice: I follow this case for a long time and I feel as though — I feel Donziger is getting railroaded here. That whole case is messed up.
Kathryn Rubino: Yeah. There should probably be a whole course, just this case. It’s an environmental poisoning case that happened in Ecuador. It’s a whole bunch of things. It’s a whole bunch that going on here, but I did think that Judge Preska has very evocative language, was pretty noteworthy.
Joe Patrice: Yeah. Basically, what happened is this company — I don’t think it was technically– I think they (00:23:55). But poison the hell out of this place and no one’s even arguing really. They straight up poisoned all these people, those folks won a decision. Then the company went to America to try and say put all the people in jail and make them pay for the fact that we poisoned them. It’s really a mess.
Kathryn Rubino: Yes. The environmentalist in me definitely feels that. On the other hand though — discovery request no matter which side you’re on discovery requests you have to comply with those.
Joe Patrice: His argument which I do understand is that he’s very much taken the stance that there’s no jurisdiction here over this because it’s basically this weird collateral attack on another country’s decision for the sake of basically doing an end run around the justice system in that country at the — it’s bad. I would obviously turn things over but as I comply with orders.
Kathryn Rubino: And there’s been a number of — Lewis Kaplan I think also had —
Joe Patrice: He’s the primary judge on it.
Kathryn Rubino: He’s the primary judge on it, yeah. You’re not just talking about like one judge that’s annoyed by the process or Donziger’s response to the litigation and as a litigator, you have to imagine that when people respond with litigation, you should know how to behave. This is not nuanced. Turn over your documents. This doesn’t seem nuance. But otherwise you’ll get a two by four right between the eyes in the form of six months in jail
Joe Patrice: Fair enough. But anyway — well, cool.
Kathryn Rubino: That’s all she Wrote for judge week.
Joe Patrice: For judge day?
Kathryn Rubino: Judge week. Well, I think that brings us to a conclusion. Thanks for listening. You should be subscribed to get new episodes when they drop. You should give reviews, write something. It goes further than just stars to help get more people to know about the show. Thanks to Nota powered by M&T Bank and Lexicon for sponsoring the show. You should be reading Above the Law as always, because that’s where the story – you see these stories first written there and sometimes we’re just as funny if not funny or in writing.
Kathryn Rubino: Well, I think that we often have a more nuanced take when we’re actually able to talk it out as opposed to just kind of like the one hit like quick bang, get it out. And also there’s like the dialogue aspect. Like you had followed the Chevron—
Joe Patrice: Oh yeah, my favorite part. Yeah. No, just kidding.
Kathryn Rubino: Wow. That really happened. No, but there is more of a dialogue between two of us as opposed to one of us which is writing a story.
Joe Patrice: Kind of makes sense. Yeah, I think that’s true. You should be listening to the other shows. Kathryn hosts The Jabot. I’m a panelist on the Legal Tech Week Journalists Roundtable.
Kathryn Rubino: You got that out.
Joe Patrice: You know, I do that almost every week and you continue to push this thing from a year ago.
Kathryn Rubino: It’s very, very funny for me.
Joe Patrice: Fair enough so long as you’re happy. There’s also a bunch of shows from the Legal Talk Network that we aren’t on that you should be checking out. Follow us on social media. I’m at Joe Patrice, she’s at Kathryn 1, that was what we should have talked about in small talk.
Kathryn Rubino: What?
Joe Patrice: The Twitter has made another one of those egregious errors that get them in trouble all the time.
Kathryn Rubino: Judge Page got verified.
Joe Patrice: You are now verified.
Kathryn Rubino: I am.
Joe Patrice: Blue check mark world. Well, welcome. I will give you a tour of the executive suite that we all get to use.
Kathryn Rubino: Do I get a key to the fancy bathroom?
Joe Patrice: Yeah, exactly. That’s what you get when you get your blue check mark. I, of course, had it first several years now.
Kathryn Rubino: Okay. We’re done, we’re done.
Joe Patrice: All right. And with that, we’ll talk you all later
The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
Podcast transcription by Tech-Synergy.com