‘Supreme Court Ethics’ Achieves Oxymoron Status

Episode Notes

Transcript

[Music]

Joe Patrice: Hello welcome to the —

Kathryn Rubino: Hey! Welcome back to Kathryn.

Joe Patrice: Okay. Yes. Welcome to Thinking Like a Lawyer. I’m Joe Patrice. That’s Kathryn Rubino. Chris Williams is here, but understands that he’s supposed to not necessarily cut people off because he’s more polite.

Kathryn Rubino: I’m doing definitely supposed to do what I’m doing. You may not like it, which I will grant, but I’m supposed to be doing this. This is, like, my mission.

Joe Patrice: Yeah, well, this is, of course, welcome back, Kathryn, who I guess there was one emergency podcast in there, but is now back from leave.

Kathryn Rubino: I’m back.

Joe Patrice: Yeah. Exciting. Well —

Kathryn Rubino: Back again. Thank you. Thank you.

Joe Patrice: Yeah.

Kathryn Rubino: Turns out I had a baby.

Joe Patrice: Yes. How’s all that going?

Kathryn Rubino: Great.

Joe Patrice: Super.

Kathryn Rubino: She’s adorable, she’s magnificent, and is asleep. So win win for me.

Joe Patrice: Seems like that’s key to being adorable and magnificent, is being asleep. All right, that’s –

Kathryn Rubino: There we go.

Joe Patrice: That really does count as small talk, I suppose. Like, literally small.

Kathryn Rubino: She is little. She is little. But she’s two months old and now has gained three pounds, which is a significant percentage of her weight, considering she started at six. So, yeah, we’re happy with the size of the baby.

Joe Patrice: Cool.

Chris Williams: Can’t believe it has really been two months.

Kathryn Rubino: Yeah. Yeah, it’s been two months. It’s both incredibly fast and an incredibly slow time that has gone by.

Joe Patrice: Well, all right.

Kathryn Rubino: Well, what have you been up to, Chris? Well, I haven’t seen you in two months.

Chris Williams: Yeah, I’m back in the United States. That’s a thing. I’m happy to say my plant survived me not being here for five months.

Joe Patrice: Wow.

Chris Williams: That’s cool. But, you know, really, I’m just getting used to the prices of the US. It makes no sense how much everything costs here. It’s like, three to four times the amount of some groceries.

Joe Patrice: Yeah.

Kathryn Rubino: Well, it’s not known for being cheap here.

Chris Williams: Funny thing is it is. I was talking to people in the airport and they were like, “Oh, things are expensive in Cambodia. I can’t wait to go back to the United States where they’re cheaper.” I just looked at them, and I know the soul had to leave from my eyes. America’s PR team is phenomenal.

Kathryn Rubino: How about you, Joe? What have you been up to?

Joe Patrice: You know, it’s been interesting. I’ve just kind of been doing basic home repair sorts of things, like getting everything on track around here, watching TV, nothing too crazy. I’ve just completed a webinar that I did on the Future of AI.

Kathryn Rubino: This is not small talk. That is work talk. You can’t fool me. I know the difference.

Joe Patrice: Look, maybe I care so much about my job that in a sense, I’ve never worked a day.

Kathryn Rubino: No, but for real, it’s really beneficial for you. I mean, I say it as a concerned acquaintance. Getting a hobby will help you. It’ll keep you from getting burned out at your job, keep you healthier, happier, more fulfilled.

Joe Patrice: I feel like the couple of months with you not on the podcast helped me from getting burned out.

Kathryn Rubino: Wow. You’re a delight.

Joe Patrice: That’s fair. That’s what folks say .All right, I will pull the plug on this, and we can move on to chatting about real topics. So, where to begin? Where to begin? Any thoughts?

Kathryn Rubino: Why don’t you pick?

Joe Patrice: All right, well, I guess we may as well go to the story that keeps on giving. Supreme Court ethics stuff. The biggest story that we had last week was actually it was one of those stories that I always feel bad about because it was a story where I was pointing to somebody else’s story. So it wasn’t really like it was original. It was just me, like, trying to help hype somebody else’s story. But federal judge wrote an opinion piece in the Times explaining, you know, I think it was a great piece. Everyone should read it, but going through and explaining how the Supreme Court’s ethics problems really go further than just whether or not they should have an ethical code that they are compelled to follow, which they probably should. But even beyond that, this judge explained, “this isn’t hard stuff, and it’s stuff that all the rest of us judges do all the time.”

Kathryn Rubino: Yes, because they have an ethical code that is enforceable.

Joe Patrice: Right, and it’s true, but really the point in Judge Ponsor’s piece is that even though there is a code that’s enforceable, there’s a lot of just getting it right based on kind of a “smell test” as he’s putting it.

(00:05:00)

That he talks about instances where gifts were offered to him that he didn’t take, where one could, theoretically, as a judge, have taken that gift and probably mounted defense to argue that it wasn’t in violation, technically, of the code. But he’s explaining that that’s not what federal judges do. Federal judges generally just follow the rules and go above and beyond the rules because they understand —

Kathryn Rubino: Well, it used to be a cliché, right?

Joe Patrice: Yeah.

Kathryn Rubino: Like the mere appearance of impropriety was something to be avoided, not can I possibly justify it under a really hypertechnical —

Joe Patrice: “Hypertechnical argument” that’s actually a phrase he uses in reference — yeah. In response to Alito’s pre rebuttal that he did, where he went to the Wall Street Journal and wrote a bunch of “well, technically, the word facility would include a plane, and therefore I was using a –” He’s like, these sorts of hypertechnical arguments are not what the federal judiciary is known to do and his position is whether or not the court ever gets some sort of a judicial code that they have to abide by. What’s wrong in this country is that the Supreme Court seems to have lost that natural sense of smell that maybe I shouldn’t be doing this, because —

Kathryn Rubino: This actually, I think, goes further, not just that, oh, the Supreme Court should be doing this. Other folks are doing this. It’s not hard to do this, which I think is definitely a great point, but also the way in which, over time, this changes what the rest of the judiciary does, right? People who become judges, federal judges now or in five years or in ten years have a different model ahead of them than past jurists, and they will respond accordingly. Not that they want to be less ethical than their predecessors, but that is the environment, that is the industry to which they have been appointed and elevated.

Joe Patrice: Yeah, well, let’s talk a little bit. Speaking of which, we had a couple of additional scandals come out over the last week and by scandals, are they scandals? Maybe not, but maybe it’s more to the point of the Supreme Court looks so bad right now that everything seems like a scandal. Let’s start with Venmo gate. So, Chris, you covered this. This is Clarence Thomas’ latest thing, which we are calling Venmo Gate, because why not?

Kathryn Rubino: Well, Venmo was involved so there at least there’s a reason.

Joe Patrice: All right, so what happened here?

Chris Williams: In essence, nothing happened. That’s the story. There was a clerk of Justice Thomas. He was the main person of the story. He had his Venmo transactions public, which most people do, and it showed that several other people who also clerked for Thomas sent the guy money from, like, 2019 or so, and they were labeled Clarence Thomas Christmas Party or CT Christmas Party, all the other variations. Merry Christmas. The Guardian looks at this and they then ring the bell talking about how this is proof of judicial conflict. How dare Justice Thomas, even his clerk, do this? And trust me, I’m the guy that wants to talk shit about Clarence Thomas whenever possible. I wake up, brush my teeth, I search Google, “I’m like, please, another thing to gossip about.” But this just wasn’t it. It just wasn’t. I think it does speak more to the thirst for transparency about the judiciary generally, but nothing happened. So a lot of the issue is about hypotheticals or what if this was proof that all his clerks paid off the bill for Clarence Thomas’ party? Which would be a story. Would definitely be a story, but that’s not the story we have yet.

Joe Patrice: Yeah, the argument is that these former clerks who are therefore powerful people in their own right were using his aid as kind of a shadow payment. They were really paying clearance, but doing it through this aid was the argument. And why were they paying for Christmas parties? Why are they going to Christmas parties? Yada. Yada. Which I agree completely. I didn’t think was a real issue. That said, it speaks to a real issue, just one that I think is beyond this whole money and Clarence definitely has his own money issues going on right now ethically, but it’s beyond the money issue. What bothered me about it is it’s a testament to how the revolving door of Supreme Court clerk to powerful practitioner is real.

(00:10:00)

It’s a well-greased revolving door. But it’s also one of those situations, you know, I don’t really care that one of his clerks might be a junior associate somewhere for a few years. But we’re at a point where, I mean, he has clerks who are longtime professors at law schools. He has clerks who are high end practitioners at this point, partners who are running practices. That’s what gets me and it’s not something that is necessarily his fault as much as it’s a broken thing about this system, which is when you have a life tenure system like we do, and somebody gets to hang around for 30 plus, years. Then those clerks who are the clerks that he invites to clerk parties because that’s what judges do. When it’s a bunch of junior people, that’s not a big deal but when you’re actually hanging around for this long, then you’re having parties all the time with incredibly powerful people who have business before the court. And that’s where it crosses into being problematic and really highlighting the problem for me.

Kathryn Rubino: I think that’s correct. But I will say even though I don’t think that this particular scandal in “has panned out.” I do appreciate that we’re actually starting to pay attention to all this money and the court issues.

Joe Patrice: Yeah, well let’s transition from that then. Still on this topic but related. So the other mini scandal that came out is so we’ve had a slight percolating, one that Justice Sonia Sotomayor does not, in multiple occasions did not recuse herself from cases involving her book publisher, which kind of has kicked around as a possible problem. But then it got added on top of that with a new issue. So let’s walk through that.

Kathryn Rubino: Right. The AP did a report on some of the work that Sonia Sotomayor’s court staffers have done in relationship to her activities as an author. Various book events that she’s done, other sort of public speaking engagements that she’s done that the staffers have been working. You know, what kind of work are court staff folks doing in relationship to activities that she gets outside money for was kind of the underlying question. The thing that really struck me about this, you know, again “scandal” is the way Sonia Sotomayor has responded. We are getting too used to these vague or combative kinds of responses to questions about ethics and about how people are making money and what’s going. We talked about the Alito response earlier in this, the scandal with Clarence Thomas and Harlan Crow first broke and continues to break. There’s been only vague sorts of references and justifications for what happened. There’s not really been sort of come to Jesus, this is what’s going on kind of statement from the justice about it. But Sonia Sotomayor’s response talks about the fact that her judicial code of ethics says that judges are supposed to engage with the public on legal and non-legal topics in order to sort of build the public trust in the judiciary. And that that’s what her staffers were doing, that they worked on. There are multiple justices and judges that work with the public on these kinds of events. This is very much akin to what her staff was doing, that, yes, it was a book event, but no one was pressured necessarily to buy a book in order to attend the event. The point is, regardless of kind of the specifics of what the staffers were doing at any given moment, she’s very clear about her justifications for what it was, what happened, why she believes it’s okay and I thought that that was kind of a refreshing response to an inquiry as opposed to sort of the —

Joe Patrice: Yeah, I think that’s true. I’ll push back on that no one was pressured to buy anything, and this is not something that she did that’s untoward. Although I saw some right wing publications like, say, “Can you believe she forced places to buy the book?” But the way book tours work is that the place where you are going to sign books, they are told buy this many books to have so that you can then sell them to people who are coming in to get it signed. Right? So ultimately, it is driving book sales and that’s where I think it could be problematic because I don’t think when we’re talking about engaging the public, I’m not altogether sure the intent was to sell books. But yeah, I agree with you that this is something that she’s confronting ahead on and being like, oh, I kind of thought it was this. It’s not nearly as squirrely as the argument, oh, I kind of thought that having all my vacations paid for was personal hospitality.

(00:15:00)

Kathryn Rubino: It’s also different in type because no one is saying that then she was adjudicating things in front of the court based on these specific book sales. Right? And as to whether or not she heard cases or should have heard cases regarding to her publisher, she has said that there’s now been a change in the conflicts process that would prevent that from happening in the future. It was inadvertent that she heard the cases in the first instance. So there’s a recognition of a change in process that has occurred as a result of the inquiries, which I think is really —

Joe Patrice: Barnes and Noble being forced to buy some books for her to do. I’m just using them as example. Not them in particular, but a bookstore being forced to buy a bunch of books so that she could have a five-minute talk and then sign things, nobody’s thinking that they were trying to curry favor by doing that. Like, say, I don’t know, offering a private jet to fly somebody to a luxury resort for a week.

Kathryn Rubino: Right. I think it is different and a lot of the programs that Sonia Sotomayor did were with schools where they would talk about her book in response. So, like, these schools would say, “people have to buy the book in order to participate in the program,” et cetera.

Joe Patrice: Well, it really got to me as I saw some of the social media backlash over it, it really spoke to how folks whether or not this is technically an ethics issue, fine, it may well be, and hopefully it will get addressed. But what really got me was the way in which it speaks to how these folks don’t quite get why people are mad. They think people are mad because justices are making money. No one’s mad because justices made money. They’re mad because they’re making money undisclosed from people who are using it as an effort to curry favor with them. It’s the corruption part of it, not the actual making money part.

Chris Williams: To that point, and this may or not be pushback. I think one of the things that you have to acknowledge with this is that the arguments aren’t equally in good faith. Let’s say, Clarence Thomas gets paid $500,000 for showing up somewhere, it’s like, “What? Friends can’t give each other money?” And then a book deal happens, like, “Oh, my God, she forgot $3.” The things that are happening are being trumped up. Part of my heart is like, it’s cute to see a good faith response, but I’m like, it’s also being wasted on the people this response is meant to appease.

Joe Patrice: All right.

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[Music]

Joe Patrice: All right, so we’re back. Let’s talk offices a little bit. This is not really a new story, but it’s more development in a story. So we have more firms pushing toward four-day week.

Kathryn Rubino: Yeah. Over the last week, we learned that while Gotshal was now mandating four days in the office for their attorneys as well as Skadden and Davis Polk were the other two firms that have come out and made this. They’re sort of going forward and three is a trend.

Joe Patrice: Yeah. So that’s interesting. So I will push back on that. I’m not sure what to make of this. Certainly you would think three would be driving something, but I also think about when a salary increase happens or a bonus comes out, you don’t have the kind of gap in time that we’re having between these firms making these announcements. People move rapidly, if not sometimes even on the same day. That’s not what’s going on. I think I read an article in ‘American Lawyer’ where somebody was quoted saying “This is weird because it’s a slow trickle” and it is a slow trickle and that’s not something I’m used to seeing from how big law copycats each other.

Kathryn Rubino: I think that’s a fair point, but I will say these are the trickle is still happening before but I think is a key period of time, which is the on campus interview season which happens at the end of the summer.

(00:20:00)

So I think that that’s very important. I also think that when firms are making the decision about what kind of in office presence they’re going to mandate, if they’re going to mandate, et cetera. Having these sort of big name firms come out with these very strict kind of policies emboldens everyone below that sort of level to have, well, we’re only mandating three days, aren’t we benevolent in comparison when if Skadden wasn’t doing this, they might have only felt empowered to mandate two days in the office. Right? So even if not everyone is matching the same number of days as this kind of big three firms so far, do you think it still has an impact on the industry as a whole?

Joe Patrice: I think that’s fair. I don’t know. I definitely see, on a recruiting front. I definitely see it as a strong counter recruit like people are going hard with these firms have moved four. This firm is still at three, or this firm is at four but doesn’t mandate which four it is. That is a selling point. I think from a big law firm perspective, you never want to be out on a limb being more draconian, right?

Kathryn Rubino: Unless you have the name to justify it and I think that that’s probably what’s happening. Firms that feel that we have the name, that we will get enough people who want to work here regardless. I think that it also depends, I think, how much the firm depends on law school recruitment versus lateral recruitment. Because I think folk’s firms that are big in the lateral market understand that this becomes very important. I think that when you’re dealing primarily with law school students, there’s a different perspective. The majority of folks haven’t been in the workforce a ton. It seems like, “oh, I could do four days.”

Joe Patrice: I think that’s true. But to push back, no one’s not involved in the lateral market. Because even if they aren’t hiring in the lateral market, that means they’re being recruited out of in the lateral market.

Kathryn Rubino: Well, I guess how much they depend on the lateral market. There are some firms that primarily recruit and promote from within and there are other, even though they might lose folks to the lateral market, they still aren’t dependent on the lateral market in order to fill their ranks.

Joe Patrice: Right. No, I’m just saying that there’s a sell side that they’re opening up and how much attrition are you willing to have in your mid to senior associate ranks and that’s really what they’re buying with this sort of a decision.

Kathryn Rubino: It’ll be interesting to continue to monitor and also track how the legal industry compares to other industries.

Joe Patrice: Yeah, well, I mean, that was the thing. The original push for all of this was coming from the banking side.

Kathryn Rubino: There’s a lot of business to big law firms.

Joe Patrice: I assume it was banks that had a lot of commercial real estate in their portfolios.

Kathryn Rubino: Almost inevitably.

Joe Patrice: Yeah.

[Music]

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[Music]

Joe Patrice: Okay, so we’ve talked about this in a few different stories here and there. There’s no, like, one deep dive that we’ve done into it but this is actually a story that we’d like to talk about just because Kathryn has more or less missed it being gone on leave.

Kathryn Rubino: I was like, “what’s happening here?”

Joe Patrice: While chatting about this, she was taken aback by what’s going on here. So we’re going to talk about Judge Pauline Newman of the Federal Circuit.

Kathryn Rubino: So, as I’m kind of coming into this, let’s start at the most basic. Judge Pauline Newman is a judge.

Joe Patrice: Yes, that is correct. Federal Circuit.

Kathryn Rubino: Federal Circuit. Great. And my reading is that she’s of a certain age?

Joe Patrice: Yes. Very specifically, 96, I believe.

Kathryn Rubino: That seems old.

Joe Patrice: Yeah.

Kathryn Rubino: And this plays into the story?

Joe Patrice: Yeah. The chief judge has been pushing apparently, along with the support of a lot of the other judges on the Circuit, has been pushing to get Judge Newman to leave, up to and including telling her she’s not allowed to sit on panels anymore.

(00:25:08)

Really kind of sketchy stuff. Judge Newman is not cool with any of this and going so far as to conduct interviews with media outlets explaining how not cool she is with this. So let’s go through now. So what were your initial reactions to this?

Kathryn Rubino: Well, initially, you say, “oh, 96-year-old maybe should take a break from active duty on one of the most important federal benches in the country” but have there been any complaints about her jurisprudence? I mean, a number is certainly a bit of information about her, but it’s not certainly everything.

Chris Williams: There have been a lot of complaints about her dissents but outside, like, she dissents a lot, but outside of that, not really.

Kathryn Rubino: Lots of people do.

Joe Patrice: Right. She dissents a lot and also she’s got strong feelings about the Federal Circuit as a concept at this point. She actually gave an interview recently where she said that even though she was one of the driving forces behind kind of building this body, she thinks that it’s kind of broken in how it operates.

Kathryn Rubino: Because they’re trying to force her out? Are these things related?

Joe Patrice: Seemingly more fundamental. But yeah, so we moved a lot of our intellectual property law into this kind of separate off ramp right into the Federal Circuit, as opposed to having it decided at the various geographic circuits. Was that a good idea or not? There’s still philosophical questions.

Kathryn Rubino: A random jurisdiction in Texas getting all those cases.

Joe Patrice: Right and that’s kind of the question there. I will say of this, my take on it has been I fully understand the idea that a 96-year-old judge and this goes back to the Clarence Thomas talk about being entrenched for 30 plus years like a 96-year-old judge isn’t ideal. That said, if we’re going to live in a world where we privilege life tenure, you absolutely cannot have a situation where the other judges on the court go, “oh, we’re not letting her hear cases anymore.” I mean, she is a co-equal federal judge until the moment she chooses not to be. So leave her alone.

Kathryn Rubino: Or she’s been impeached.

Joe Patrice: Or she’s been impeached. Right.

Kathryn Rubino: Yeah. I don’t want to be a textualist, necessarily, but when you say lifetime appointment, you can’t change your mind just because we’re living longer now.

Joe Patrice: Yeah. Well, it increases the argument for some form of term limit, at least for term limit, for active duty status. Like, we have a senior status. It is a thing people can take. I think a world in which we forced all of our judges to take senior status after X number of years would be wonderful. It would open up judiciary to new people and new voices. It would release the pressure that currently exists to have a bunch of children on the court. I mean, back to the Clarence Thomas discussion about how I said I don’t really care about junior people, the senior people, or what’s the problem? I mean, a person one year removed from clerking for Justice Thomas ended up on the federal bench because Donald Trump had reached the very bottom of eligible people who were magoosh(ph) enough and young enough to be on the court.

Kathryn Rubino: For 50 years. Yeah.

Joe Patrice: Yeah, so I think it would be much nicer if we had that sort of system, but until we do, you’ve got to live with this is really my feeling on it.

Kathryn Rubino: Yeah. It seems like we’ve got a system. You got to change the system if you don’t like it, you can’t just —

Joe Patrice: Yeah. So a mediator has been appointed to hear this former judge is going to hear these complaints. Mediation is really a lot of handholding, and negotiation. It’s not necessarily binding in a lot of ways. We’ll see how this works. I don’t know. I’m very much on the camp of leave Pauline alone in the Britney voice. Who was that? I can’t even remember who the person who did that was. But, yeah, I’m very much on that camp, at least until we change it.

Chris Williams: Some fan is very angry with you right now. They’re like “how do you not know” insert name here.

Joe Patrice: I know it’s killing me. Anyway, so that’s what’s going on there. It’s an interesting question. Like, what do we demand of the courts? We had this situation at the Supreme Court at one point, and it got resolved mostly by luck. That way with Douglas actually left the bench, but he was very much, I’m going to stay, and everyone else said, “except you have dementia” and it became a problem that was threatened to become an impeachment situation, but ultimately did not.

Chris Williams: I thought you were talking about RBG for a second.

(00:30:00)

Joe Patrice: No, that was a different issue. She should have left for a bunch of other reasons, but this was one where there was actually a medical reason to leave, but he wasn’t excited about doing it. Here, though, look, everybody I follow, I don’t really do a lot of this patent litigation stuff. I do know that patent professors and so on that I follow suggest that they have seen her speak recently and don’t seem as though there’s any issues. So it’s not like a situation like Justice Douglas’ seemingly. So, yeah, it’s going to continue to be an issue, but I definitely don’t think your fellow judges get to put you —

Kathryn Rubino: It does seem like that is a system that is ripe for abuse.

Joe Patrice: Yeah. Right. Could you imagine?

Chris Williams: Definitely shouldn’t be able to make up health conditions.

Joe Patrice: Yeah, I mean, it could be all sorts of mischief could happen if currently the chief judge of some court can sideline all of their colleagues. That would be really dangerous. With all of that done, let’s conclude. Thanks, everybody, for listening. Welcome back again.

Kathryn Rubino: Thank you.

Joe Patrice: Thanks, everybody, for listening. You should subscribe to the show so you get new episodes when they come out. You should leave reviews, stars and write something and welcome Kathryn back and all of that sort of thing. Anything there helps the algorithms learn that we’re a podcast that talks about law that people should be listening to. You should be listening to other shows. Kathryn’s the host of the Jabot. I’m the guest on the Legal Tech Week Journalist Roundtable. There’s a plethora of other shows on the Legal Talk Network to be following. You should be reading Above the Law as always, so you can read about these and other stories before we talk about them here. You should be following us on social medias atlblog is on Twitter, and I think that might even be the name on Threads at this point.

Kathryn Rubino: I believe so.

Joe Patrice: Daily use fell off like 70% last week or something like that. So maybe it’s not —

Chris Williams: That was a thing.

Joe Patrice: Yeah, exactly. Who knows how that plays out? Personally, I’m @JosephPatrice on Twitter, and I’m @JosephPatrice at all the other various things, Blue sky, Threads yada, yada.

Kathryn Rubino: I’m either @Kathryn1 or KathrynRubino at the various.

Joe Patrice: KathrynRubino. You’re Kathryn1 at Twitter I know. I believe you’re Kathryn1 on Blue Sky.

Kathryn Rubino: And Macedon @Kathryn1 but what was the other one that happened?

Joe Patrice: Threads?

Kathryn Rubino: No, something P?

Joe Patrice: Post. I forgot that we have Parlor. Yeah, no, Post I really think that one’s gone. But yes, there’s that. Chris is @writesforrent, the W, like writing for rent at Twitter and other places. I actually don’t know what your handle is everywhere. Is it the same or are you anywhere else?

Chris Williams: I’m Chakra Sun on Snapchat.

Joe Patrice: Fair enough. Okay, so then there’s all that and yeah, with all that said, thanks, everybody. Bye.

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