Judges Behaving Badly

Episode Notes

Transcript

Joe Patrice:

Welcome to another edition of Thinking Like. A Lawyer. I’m you.

Kathryn Rubino:

Hi Joe.

Joe Patrice:

Hi, I’m Joe Patrice from Above the Law. That’s Kathryn Rubino. You heard a little giggle from Chris Williams in the background there. We are all from Above, the Law. We’re here as we usually are, to give you a rundown from some of the top stories in legal. Usually from the week that was though this week there might be some that bleed into the week. That is five for

Kathryn Rubino:

Sure. I don’t even think it’s a hypothetical at this point.

Joe Patrice:

Yeah, okay, that’s fair. So with all of that said, I think we are prepared as per usual to have a little bit of small talk before we get started. Small talk, small talk. Alright. So how are things going everybody?

Kathryn Rubino:

I am good. I, over the weekend finished a Court of Rose and Thorns, thorns and Roses series. There’s 5, 6, 5 books. 1, 2, 3, 4, 5, 6. Anyway, I finished them all and that was a big thing that I had been doing for the last couple of months. A little bit slower pace than I feel like I should have because I have a child and sometimes that has to be dealt with. But now I am so ready to look at everything on book talk. I will not be spoiled. I’ve actually read it. So I am thrilled with that fact and I would say yes, you should read it too, to anybody who’s asking.

Joe Patrice:

That’s cool. I did not do any of that. So I had a relatively busy with chores kind of a weekend, one of those sorts of situations. But I’m clearing the decks of course, because EAs college football game will release at the end of this week, at which point I will stop doing everything until at least 30 years of my franchise has been completed.

Kathryn Rubino:

How long does that take you?

Joe Patrice:

It shouldn’t take you back the dynasty mode. Yeah, I’ve actually never gotten to the end of dynasty mode. It’s so time consuming. The only person I ever know who has finished like a franchise slash dynasty mode is our former co-host, Ellie Maal. Finished, finished the Madden franchise with the Giants Swans.

Kathryn Rubino:

There you go.

Joe Patrice:

That was when he was, that’s different between jobs. So that’s the only way that I’ve ever known anybody to be able to pull that

Kathryn Rubino:

Off. Well that’s also kind of, I know you like a small talk moment that goes a little bit legal, but we went a bunch of years without NCAA football as a video game because of all sorts of amateur issues. Yes, amateur amateurism, right? Isn’t that what the Third Circuit said?

Joe Patrice:

Right. So the reason why this game has been so eagerly anticipated is that because of the lawsuits surrounding the exploitation of college football players and other college athletes, we haven’t had this game for a long time, but now that EA is capable of paying people for the use of their likeness, we have the game again in the past, it’s not like they could put the names of the players in or anything, but they would have really craft

Kathryn Rubino:

who suspiciously liked.

Joe Patrice:

They would craft somebody who looked very similar and had very similar statistics to a real player who would have the same number and the computer was weirdly baked into the computer. If you went in and manually changed the names of all those players, it would figure that out and their and have prerecorded versions of their names. So it was a little coy before, but now because of the way NIL laws work, we can actually pay them and the NCAA continues to fight these rules and yes, recently the third circuit shot that down.

Kathryn Rubino:

They’re like, nah, you’re wrong. Yeah.

Joe Patrice:

So yes, you’re right. This is a victory for law, all fun things in the world that is ultimately about law.

Kathryn Rubino:

How about you Chris? What’d you do?

Chris Williams:

Oh, in normal people world, I enjoyed my weekend. There’s this show called, oh,

Kathryn Rubino:

I enjoyed my weekend.

Chris Williams:

I was returning back to normal people world. Joe had his thing cleaning school too. No. So there’s this show I’m watching, it is called Food Wars. It is amazing.

Kathryn Rubino:

Okay. I’m a big fan of cooking competition shows. Tell me that’s what it is and I’m in.

Chris Williams:

That is definitely a part of it. I think you may enjoy it. Part of me is also like this is a weird recommendation to give a coworker to anybody that’s seen the show. So it is a love letter to Food and culinary arts. It is brilliantly made. It is beautiful. You ever hear of the term Food chasm? Each episode is a series of that to the point where I’m like, wait, this is actually inappropriate. I can’t recommend this show to my mom. But despite that, it is legitimately a good show. So just know it should come with a parental writing, but there’s no obvious nudity or anything, but it’s over the top and goofy. But it’s an amazing show. The storyline is nice and learning some things about food.

Kathryn Rubino:

There you

Chris Williams:

So.

Joe Patrice:

Alright, well with all of that said, we can conclude small talk now and what is our first topic of the day?

Kathryn Rubino:

Well, this actually is something Joe wrote about just a few minutes ago. We record on a Monday, Eileen Cannon had some things to say about the documents case against former President Donald Trump.

Joe Patrice:

Yes. So both, well, I wrote a very brief breaking news announcement. Our columnist, Liz Dye, got deeper into the article of course into the opinion of course, but the classified documents case, which you may remember is of all

Kathryn Rubino:

The easiest one,

Joe Patrice:

Yeah, I hesitate to say smoking gun, but given the events of this week, but

Kathryn Rubino:

A little too on

Joe Patrice:

The ear. But in all seriousness, that is the term that would apply here. This is the case that had the most smoking gun. There were documents that he shouldn’t have had in his house. He had been told to turn them over. He had his lawyer sign an affidavit declaring that they had turned them over when they knew for a fact they had not. So this is the most, that’s no bueno. This is the most glaring the case about his involvement in January 6th and all that. And in these fake elector plots are all serious cases, but they’re all far more attenuated as far as what he may have known at any given juncture. This one is the case that was the simplest, most straightforward, and it has now been dismissed by Judge Cannon, who was of course appointed by him in a 93 page opinion in which, but what’s kind of interesting about it is how she chooses to dispense with the case and she chooses to dispense with the case by arguing that Jack Smith is not constitutionally in the role of special counsel.

Kathryn Rubino:

This seems, first of all, very appealable. I don’t think that the 11th circuit is going to agree with Judge Canon. So there’s that aspect to it, but also it seems as if, okay, the DAJ has other people that can bring the case perhaps in a better jurisdiction.

Joe Patrice:

So there are a few issues here. So taking a step back, the idea that a special counsel is unconstitutional is false. So then there’s two levels to this. One. Even if you thought that it was unconstitutional, the district court is not allowed to just go ahead and say that they have to apply the law as it exists until the Supreme Court decides to change it. In this instance, the Supreme Court has been consistent over a number of decades that this is entirely constitutional. What she bases her opinion on is when you read it, the case citations are few and far between. Well, there are plenty of them, but that are relevant to the actual issue are few and far between, and they’re mostly Scalia and Thomas dissents. That is, those

Kathryn Rubino:

Are not the law

Joe Patrice:

Or concurrences in Thomas’s case. Yes. These are not the law. They in fact are indicative. They’re very indicative that that is not the law. They’re saying, Hey, we disagree with our colleagues. We

Kathryn Rubino:

Lost here. And

Joe Patrice:

The most recent being in the Trump immunity case where Thomas did in fact win, but his concurrence was, I actually think the majority should have said that special counsel are illegal too. Notably, no one else joined. His dissent joined his concurrence there. So there is no real basis in law for this opinion. She knows that it was affirmed just as recently as that Trump decision when nobody joined Thomas. Nonetheless, she boots it. Now to your point about could we move this somewhere else, so a real duly appointed US attorney could go ahead and bring this case either in Florida or as far as I can tell, could easily move it out of Florida, given that the only reason it was ever in Florida in the first place was that the DOJ was concerned about the pending case before the Supreme Court Smith v United States, which threatened to say we can toss criminal cases if the venue isn’t perfectly where the evidence of the crime is.

Ultimately, the Supreme Court took a U-turn right after this case was filed and was like, Nope, actually it can go anywhere. So DC would be a very viable place for this case to be brought. There is no jeopardy at this point because there was no Impanel jury or anything. So they could just bring it up there. They could bring it up there with Jack Smith and just say, we think she’s wrong about the Constitution anyway. They could have a DOJ bring it directly up there. My guess is they will, however, stay in the 11th circuit just for the purpose of they don’t want to give up the constitutionality of special counsel for obvious reasons as a concept. So they might go ahead and make this appeal just for that purpose.

Kathryn Rubino:

Yeah. Well, I think a couple of things. I think they don’t necessarily concede that argument if they do it in a different jurisdiction, particularly if they do it going forward with Jack Smith and just have another circuit

Joe Patrice:

Or another district. Well, they need to get the 11th circuit to overturn it. Yeah, I

Kathryn Rubino:

Expect that very shortly. Right.

Joe Patrice:

But at that point, what are they going to do? Maybe they do that and then they move to voluntarily dismiss without prejudice after it gets overruled. I don’t know. The opinion is really, really laughable. There’s a statute that has been around for a really long time that just says the DOJ can appoint special attorneys and special assistants who will be commissioned to run cases. They can be retained to do everything US attorneys can do. And her response to that is, I don’t see why this would mean that she tries to play this game as though technically when they wrote these words, maybe what they meant was, which is a wild move for Textualist.

Kathryn Rubino:

I mean, I think that that’s exactly right, and we’ve made this point previously on the show when we’re talking some of the Supreme Court cases from this term, but the gaming of the system and Textualism only means Textualism. If textualism is the result that I want has really been reduced to its nadir. This is the epitome of what people have been complaining about for a long time, and I hope we’re finally at a point where more people can see it.

Joe Patrice:

Yeah, it’s a weird decision. On the other hand, there is something to be said for this might be the best of all possible worlds of how she chooses to do this. There was some speculation early on that she might wait until Jeopardy attaches and then pull some sort of directed verdict, and that way the jeopardy’s attached can’t bring the case again and she kind of functionally ends the case, whatever. She doesn’t do that here. This off ramp gives her a way in which the case theoretically still exists. She can’t be blamed for preventing the criminal prosecution from ever happening, but it delays it indefinitely, at least until after the election, which obviously the results of that election could moot the case entirely. But she pushes it off. She doesn’t do the most finalized thing. She gets to kind of cowardly way out and maybe if the case does go forward, it probably won’t be with her because the motion, whatever happens, whether they move to another jurisdiction or they stay in Florida, they absolutely, if they stay in Florida, they’re absolutely asking the 11th circuit for kicking her off the case at this juncture, which at this point after the 11th circuit has scolded her mercilessly once in this case, if they have to do it again, one would suspect that they would grant that.

Kathryn Rubino:

Yeah, I mean it’s interesting because I think she kind of took a cowardly way out as she kind of described it, but also the way that has the most lasting impact on her personal reputation, very much jumping in front of the train or whatever for Trump as opposed to either letting the trial happen or doing whatever. This seems like this decision, I think is a real problem for anybody who ever wants to be considered a serious jurist.

Joe Patrice:

But that’s true about anything she could have done. I’m saying that of the off ramps that she could have taken, this is the one that’s almost, we use cowardly, craven, whatever. It’s in some ways the most craven because it does allow her to say, well, it’s not like I prevented it from definitively ever going forward. I just ruled up. So I don’t know. I think that it’s almost as though she has been looking for a way to weasel out of the case rather than to prove herself completely a hack. And she found a weasily way, which congratulations, got to respect that hustle.

Kathryn Rubino:

Do you though we’ll see what the 11th circuit does? I expect that to be a fairly quick

Joe Patrice:

Yeah, depending on the panel that’s assigned. Although frankly, even without even, yeah, remember the first tongue lashing she received from the 11th circuit involved some of the 11th circuit’s, most conservative judges going, you got to be fucking kidding me.

Kathryn Rubino:

And to your point, sort of about the Thomas concurrence, you are right. He’s alone on that one. Right. So there’s plenty of staunch conservatives on the Supreme Court that were not signing onto that part of his

Joe Patrice:

Opinion. They had an opportunity too, and they said no.

Kathryn Rubino:

Right. And I think that definitely probably emboldens even the conservatives on the 11th circuit to say, we’re going to say that as far as Alito is willing to go, is all that we’re willing to go. Yeah,

Joe Patrice:

Right. Okay. So what is next?

Kathryn Rubino:

There is one fewer federal judge after Alaska District Court to Judge Joshua Kindred resigned suddenly last week.

Joe Patrice:

Oh, I mean, you always hate to hear, I am sure it was some sort of health emergency or something for such a young judge to resign so abruptly. I’m sure there’s nothing really.

Kathryn Rubino:

It was a misconduct complaint and faced with a prospect of impeachment or a voluntary resignation, he in fact, voluntarily resigned. There was, I think well over a thousand pages written by the special committee that was investigating the misconduct complaint about him and the Ninth Circuit put out a complaint detailing of everything that was in there. And it’s not good at all

Joe Patrice:

As my read of, and I did not read all 1000 pages, but my read of the selected bits that I did read were every time you thought you had gotten to a point where he said, well, I mean at this point he obviously must leave the bench. There would be more.

Kathryn Rubino:

Yeah, yeah. It’s not great. I think that they said that there was over 700 pages of text messages that he sent to and from his clerks, and he’s only been on the bench for four years, four and a half years, something like that. He’s a Trump appointee, so hasn’t been there that long. And man, just jam packed all that misconduct in there, just inappropriate conversations with his clerks, just telling them about nude photos that he received from an assistant US attorney when he told a particular clerk about that, this is my favorite line, I’m just a LawClerk, please don’t ask me these questions. I’m just a LawClerk, sir,

Joe Patrice:

This is an Arby’s.

Kathryn Rubino:

He was talking about rating attorneys about on their fuckability ratio, that kind of stuff, talking about his sex life, their sex lives, their boyfriends, their girlfriends, et cetera. And also, I mean, that was just kind of with the group of his various clerks. And there was one clerk in particular, which it was even sort of more inappropriate, sent text messages to her while she was on vacation saying, you’re my best friend and I really just care only about what you think of me. And then once she left being his clerk, there was a couple of incidents where there was a physical initiation of physical relationship between them by him. And when confronted with or asked about it during the investigation, he lied according to the ninth circuit. And when confronted with the text messages that seemed to very clearly indicate that there had been some measure of sexual relationship between them, he was like, well, I don’t know how to explain that.

But yeah, so not great. And I think really hammers back a lot of the things that we’ve been hearing for a lot of years about the relationship between judges and their clerks. It was a bunch of years ago now that Alex Kaczinski was pushed off the bench for also inappropriate behavior towards his clerks, although not necessarily a sexual relationship as there’s alleged in this case, but still that kind of inappropriate behavior. There’s not a ton of regulations. Even if a clerk wants to come forward, there’s AAA kind of system they have to go through that can fundamentally jeopardize the rest of their career because people kind of expect that you have a good relationship with your judge if you have clerk for them, particularly in a federal clerkship. And it’s not just the kind of ramifications aren’t just to the judge. I think I said earlier that an A USA had sent Judge Kindred naked photos and there was some reporting done that one of the people in the a u a’s office was demoted back down to a UA.

She had been, they figured out who had sent these photos and she had been in a supervisory role. And for all the cases that she actually had an appearance in front of Judge Kindred. Judge Kindred had either recused himself or was reassigned within a few days. But because of the nature of her supervisory role, she was involved in sort of jury conversations, strategizing against all sorts of cases, which may or may not include ones that other, she didn’t actually have an appearance in front of Judge Kindred, but actually was involved in that case in some way. So there’s a lot of defense attorneys in Alaska trying to piece this all together and dig deeper to see what’s going on there. Yeah,

Joe Patrice:

Really disturbing stuff. Obviously with this, the ninth Circuit has had some ethical issues of late, we waited over a year for them to finally issue what amounted to basically a slap on the wrist to the judge who handcuffed a little girl in his Courtroom for fun. It’s nice to see that there’s some amount of misconduct where the ninth circuit will be a little bit tougher.

Kathryn Rubino:

So it was not a great week for legal ethics in that way.

Joe Patrice:

All right. We’re back. And what’s our final topic?

Kathryn Rubino:

There’s some litigation going on at Northwestern Law School.

Joe Patrice:

Yes. So Northwestern, an entity known as Fasor, which

Kathryn Rubino:

Just rolls off the tongue really.

Joe Patrice:

I mean, alright, so this is obviously not the most important aspect of this case, but how do you not get a better acronym? You’re inventing an organization, the world is your oyster.

Kathryn Rubino:

You can, he needed some Tony Stark energy there when naming

Joe Patrice:

Yeah, right. So yeah, so Fast orp, which is an entity that doesn’t seem to exist in any real way, it is not incorporated, it seems to have at least no publicly facing members. What it is is a construction of Jonathan Mitchell, who you may remember is the lawyer in Texas who created the abortion vigilantism law. The early before Dobbs dealt with it was SB

Eight, right? Yeah. Before Dobbs dealt with abortion rights more conclusively. The argument of this case was, well, the government can’t make abortion illegal, but we can have individuals snitch on people they suspect of giving abortions. So that was the attempt to get around it. That lawyer and Steven Miller, who is a non-lawyer but runs legal organization called America First, which is, I’ve referred to him pretty consistently as a wokeness ambulance chaser. They file cases largely with no hope of going anywhere over whatever they see as the rage of the moment that they can get themselves some attention for calling Pop-Tarts say that Pop-Tarts make people gay. It’s the sprinkles. Yeah. They went after Macy’s as of during the week of the Macy’s parade. Just little ways in which they can file something that might get them some attention, whatever. So they’re really

Kathryn Rubino:

SEO masters here?

Joe Patrice:

Sort of. Yeah. So these two ding-dongs have come together with an organization called Fast.

Kathryn Rubino:

Sorry, what a, I’m sorry. That’s like an old fashioned dig and I really just appreciate it. Just ding Dongs.

Joe Patrice:

So they’ve come together to create this fast ORP thing, which purports to ask faculty and alumni who feel they’ve been discriminated against and by discriminated against, we mean their white people who think that law schools have been too nice to women and minorities. They ask these white folks to join them and by joining them then they can file these lawsuits. Now they filed these lawsuits against Northwestern, but do not in fact have any members who have ever applied to Northwestern. Instead they have some members they describe as a a accredited law school professors.

Kathryn Rubino:

That’s a big group. People

Joe Patrice:

Who are not going to

Kathryn Rubino:

Hired by Northwestern,

Joe Patrice:

Who they say could apply to Northwestern. And there is some, normally you need to have some injury, in fact, to bring a lawsuit. There is precedent for discrimination suits that if there’s a clear pattern of discrimination, you don’t have to go through the process of applying for it because you would’ve been rejected. So whatever. So there’s some ways around it, but very few of those ways reach as far as randos who have never even applied before, get to be the basis of a suit. In this instance, they bring this suit with a lot of gossip that they’ve clearly gathered from inside Northwestern various, well, they didn’t hire this person and they did hire this person though those folks are not actually cooperating by their own accounts with the investigation. So somebody on the inside of hiring hold Fs, orp this gossip, and on the basis of this gossip, they are bringing this suit without anybody who’s actually ever applied.

Kathryn Rubino:

That really seems like the right way to use our legal system to flesh out gossip. You heard,

Joe Patrice:

I want to also go back to your a point, which is a great one. So there’s a lot of a accredited schools, they don’t say for instance, that any of the people that are working with them are T 14 law professors or top 40 even law professors. And there’s a good reason, despite the fact that they are, this whole complaint is weirdly prestige hounding. It’s all about how some white professor from a top X school was overlooked by a black professor from a slightly lower ranked school. And despite this obsession with prestige when it comes to who their people are, they can only refer to them as a accredited. And the reason is, from what I gather from folks who’ve been trying to reverse engineer who these people are, or we’re talking about some folks who are in the schools ranked a hundred and such. So we’re not talking about people who were ever going to get jobs at Northwestern. Right?

Kathryn Rubino:

Yes. I think that this is just another sort of step, I mean there’s a reason why we have a Steven Miller thread on all on our stories, right? Because he does this sort of shit a lot.

Joe Patrice:

So, so this suit is insulting and weird and it’s also dumb in lots of places. One point that I raised in my writeup is they go off on, well they didn’t hire this professor from a SU and they did hire this professor from, and I can’t remember the school they did hire from, but they refer to that school as low ranked and the difference between a SU and that school is one position. So it contradicts itself in its efforts to be insulting.

Kathryn Rubino:

And I think that the way you sort of framed the article in the first instance is also correct, right? This is a very white faculty.

Joe Patrice:

So this is a faculty that is 83% white, which probably, if I were for instance, trying to find a lawsuit to bring, to say that diversity has unfairly taken over a faculty, I probably would look for one that was less than 83% white. But that’s just me.

Kathryn Rubino:

But you may not have an inside source at those other schools.

Chris Williams:

You might not even see levels like that at a Lynyrd Skynyrd tribute concert that is beyond the pale, that is like SPF 76 that is ridiculously white.

Joe Patrice:

It’s really crazy. Yes. So obviously Kathryn though raises the point that this seems to be a situation where they had the best inside intel here. It’s unclear who that is. Obviously there are right wing professors at Northwestern who fingers are being kind of subtly pointed at. On the other hand, the one that they’re most subtly pointed at is one who only a couple years ago wrote a vociferous defensive diversity hiring. So it seems like that would be quite the shift if he were to have been the source here. So whatever. But for fun sake, we should just note, the only kind of fun end of this story is that one of the professors who was overlooked is Eugene Vick from UCLA. They argue that he didn’t really apply for the job, but said, Hey, I might be willing to work at Northwestern and then never got a callback. And that’s the basis of data applications work. So the only reason that this is somewhat funny is that the complaint makes the claim that, but for him being a white professor, he would’ve gotten a job offer. And I’m like, do you think in this day, because it strikes me as though tenure is a hell of a thing. And it’s possible that UCLA can do nothing with a professor who routinely uses a white professor who routinely uses the N word in class, but a new school doesn’t need to bring that into their house.

Kathryn Rubino:

They don’t need that baggage, they don’t need that smoke.

Joe Patrice:

So I kind of feel like maybe it’s worth at least considering that one of the reasons why he wasn’t hired is that the law school,

Kathryn Rubino:

I mean to be, again, to reiterate, I know you’ve already said it, but it so bears repeating, he didn’t even formally apply.

Joe Patrice:

Right? He asked to be asked basically. Yeah. Which look, academia is weird. There’s some aspects to which there’s a politeness of, well if I ask this and you do whatever, but still hardly something that you should be able to bring a suit over all re of entitlement. Yeah. Yeah. And of note, we should clarify again. I mean we said it already, but none of the people that they cite by name are cooperating with the case. So Vick has nothing to do with this case. He was as surprised as anyone that it came up. So, alright. That is it for the week, I think.

Kathryn Rubino:

Yeah. Well I’m sure there’ll be more next time we hear from you

Joe Patrice:

That had such a Mr. Rogers kind of, I

Kathryn Rubino:

Felt a little Mr. Rogers when I was saying, yeah. So people, the

Joe Patrice:

Podcast. I’ve been watching

Kathryn Rubino:

Some vintage episodes of PBS stuff. That’s probably why

Joe Patrice:

So thanks everybody for listening. You should subscribe to the show to get new episodes when they come out. You should leave us reviews, write things, give stars. That always helps. You should be reading Above the Law obviously. So you read these and other stories before they come out. You check out the Jabo Kathryn’s other podcast. I’m also a guest on the Legal Tech Week Journalist Roundtable and also the various shows of the Legal Talk Network. You should be following us on social media. I’m at Joseph Patrice, she’s at Kathryn one. Chris is at Rights for Rent. I’m also over on Blue Sky sometimes and I’m at Joe Patrice over there. Everyone else is the same. The publication is at a TL blog and that now is everything. Alright, bye.

Chris Williams:

Peace.

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