What is up with these federal judges?

Episode Notes

Transcript

Joe Patrice:

Hello, welcome to another edition of Thinking Like. A Lawyer. I’m Joe Patrice from Above the Law with me. Nobody interrupted me there. I’m surprised.

Kathryn Rubino:

Well, we’re trying to give you a little moral victory. Did it work?

Joe Patrice:

Oh, there we go. Well, I mean,

Chris Williams:

Not anymore. Undercut by your

Joe Patrice:

Every little bit helps joined as always by Kathryn Rubino and Chris Williams, who are also at Above Law, and we are here as we are every week to give you a little rundown of the big stories from the week that was in legal. But first we begin with a little small talk. Small talk, which is where the sound effect would go if I had control of my board. But we can add that in post, so it’ll be okay. So pretend you all heard the trumpets going, so what’s up everybody? I

Kathryn Rubino:

Can’t even remember what I did this past weekend. I don’t know if that’s a good sign or a bad sign, but literally I have no recollection.

Joe Patrice:

Well, I am here in Sunny and unseasonably warm Salt Lake City, where I’m at Lex Summit, the FileVine’s user conference hanging out with Tucker Carlson. Not really, but he apparently was in the hotel, but he apparently was in the hotel on Saturday.

Kathryn Rubino:

I guess that’s something, I guess I do remember a little bit of what I did this weekend, which was tried to reorganize my closet. I feel like that is, I mean this whole seasonal, moving your summer clothes away and your winter clothes in is for the birds. We should all just get bigger closets because this is horse hockey. And also when you have, as Joe was mentioning, those unseasonably cool or warm days, depending on which direction it’s going. It’s ridiculous. I had put away all my sweaters because I was trying to be a reasonable adult, and then I was freezing this weekend and had to open up my vacuum packed sweaters to go find something to wear, and that made everything a mess as you might imagine.

Joe Patrice:

So you’re saying because it was not getting hot there, you took out all your clothes?

Kathryn Rubino:

Sorry. No, I’m saying it still. It felt like I put away all my summer clothes and then it got colder faster than I would’ve anticipated, and I had no sweaters. I had no sweaters available, and so I had to go digging. Why don’t we just get bigger closets? We should just get extra rooms just for closets.

Chris Williams:

Wait, wait. Did you just Riff on Nelly, Joe?

Joe Patrice:

I sure did, and that was point. What’s wrong with you? No, and I’m glad that you figured that out. That was Aly what I was doing Cadence, so yeah. Well, so I’m seeing him tonight, so that’s why it’s top of mind.

Chris Williams:

Oh

Joe Patrice:

Yeah, because he’s performing

Chris Williams:

This conference. No, see I did the thing. I did thing.

Joe Patrice:

Yeah. Yeah. So you were on top of this.

Chris Williams:

Yeah.

Joe Patrice:

Meanwhile I got the other one down here. No idea what’s happening going off the closets.

Chris Williams:

They were limiting about, which is I think one of the biggest first world problems I’ve ever heard on this podcast. It reminds me of that scene with the interaction between Kim Kardashian and Kanye. He was like, can you believe it? We don’t have a jacuzzi. So I’m just glad Kathryn’s got this far with the limited closet space that only holds clothes for several seasons. It’s rough.

Kathryn Rubino:

I mean, it’s kind of ridiculous. I don’t have enough space. I don’t have enough space. That is what I’m saying. And these space bags that you vacuum seal are just irritating.

Chris Williams:

Well, I just want to say you making it this far is braver than whatever our troops go through. Thank you for your, but anyway, back to, I’m thinking about we haven’t been on for over a week, so we missed a show.

Kathryn Rubino:

We did. We did holiday season.

Chris Williams:

Yes. So holiday season, I grilled for the first time for a bunch of people.

It was great. I want be like, I was so good. I could have put a nice char on an ice cube if I wanted to, but I’m not at, I wasn’t at that level yet. I had some issues with the coals and they weren’t getting as hot as I wanted, but the food was great. It just took 50 minutes to cook a chicken thigh. But the patience was rewarded because again, with the time it was pretty smoky, but in a way that was nice. It wasn’t burnt and it was cool. We did some pre-thought they have had some ribs and pork shoulder roasting in the oven so that when folks got on came in, they didn’t have to wait on the grill food to eat, which was some just stellar foresight on my part that, and I’m realizing that my modesty training isn’t going, but who needs it when you’re me?

Kathryn Rubino:

I mean, that does sound like it was pretty delicious.

Chris Williams:

It was pretty good.

Joe Patrice:

Well, I think that probably wraps up the various small talkery and we can get into our topics of the week. So let’s do that. What are we talking about first? Kathryn?

Kathryn Rubino:

I believe it was your story. Great. You had a banger week, Joe, and I think the

Joe Patrice:

First, yeah, go ahead. Say that one again. Oh yeah, no, go on.

Kathryn Rubino:

I think the first one is what do we call Trump judges besides Trump judges?

Joe Patrice:

Yeah. This one coming out of Chicago. Chicago, there was a challenge to a, as part of the concealed carry law that was passed in Illinois, they allowed people to get licenses to carry concealed weapons. But as part of that, they included a provision that said that if you are one of those people who is allowed to carry a concealed weapon, you can’t carry it on public transit. Pretty simple condition on it. This law was challenged. It got assigned to a judge appointed by Trump in Illinois. He ruled that the second amendment means that you can’t make, even the people who’ve applied for a concealed carry license abide by any restrictions in particular, he dismissed various ideas about the way in which it’s an enclosed space, the arguments that there are safety reasons why a moving vehicle shouldn’t have weapons on it. He dismissed all of those as obviously not an issue query

How you can keep things off of airplanes, but whatever. That’s where we are now. But with this opinion that stretched the history and tradition of that law quite a bit, he included a footnote in which he lamented that people are going to point out that I’m a Trump judge and that’s really unfortunate because I’m trying my best here and I’m really taking this job seriously and whatever. And the answer to that is counter, he’s not, I mean, it was a kind of a joke of an opinion where he glibly passed over a lot of clear reasons why this, putting aside whether or not you think the Second Amendment as defined by Heller extends as far as some folks currently think it does, the arguments for the specific use case of public transit were pretty clear and pretty extensive and pretty historical. There were some examples brought up in the case of specific at the time of the founding provisions against bringing guns into public transit sorts of corollaries like wagons and stuff like that. And those were all disregarded because history only dominates when it works in their favor. But what I thought was interesting about it and how this became a story is we do have this situation where the increasing politicization of these positions driven by the conservative legal movements idea that social change should be run through unelected judges, does put judges in this situation where the fact that they are who appointed them is relevant

And the way in which they’re starting to now not just bristle at it, but publicly bristle at it to put in their opinions that it’s unfair if people call me a Trump judge. I mean, it was really an attempt to, you read this footnote and it’s clearly an attempt to guilt some major media publication into not putting two and two together as though it would be uncouth for them to point out that that’s what was happening here.

Chris Williams:

It’s like he wrote it with Above the Law in mind.

Joe Patrice:

Yeah. Well, maybe I think in defense or whatever, I don’t think he did. I think he

Chris Williams:

Understands. He wrote it because he knew that the way it would be read with X, Y, Z, but the people that would do the reading of this would

Joe Patrice:

Be, well, I understand what you’re saying. I’m jumping off of it. I think he knows that we are a lost cause. I think he’s talking more to the New York Times or something like that, who almost certainly will write a headline that avoids mentioning it because they don’t want to appear blah, blah, blah. We are dicks. We’re willing to do that, but I think that might be who he’s writing towards. And that worries me quite a bit because if you aren’t in a position to cover legal cases within the full context of which those opinions are being written, you are doing a disservice to the legal coverage.

Kathryn Rubino:

Yeah, I mean, I think that one of the things that really stood out to me is this sort of kind of BS veneer of impartiality that it pretends to put over it. Because even if it was not available who had written the decision, if you read the decision, your gut instinct immediately would be, oh, this was a Trump judge.

Chris Williams:

Yeah. My thought is actually, I think this is great. I love she doth protest too much. I mean, not fair. I think one of the biggest stories, at least recently, well one of the ones that comes to my mind is a story Kathryn wrote. It was like, we’re not a partisan hacks. It says partisan hack. Whenever a judge has to announce, Hey, I’m not here because I’m completely biased. That’s the story. So I love this. I think there should be more of it. I also think we need to lean into a much harder insult for people appointed by Trump that keep doing Trump appointee things like maybe Orange Judge instead of just Trump appointed. I think Trump appointed is just too neutral and takes this st thing out of the fact that they are, well,

Kathryn Rubino:

Then we’ll just think that they’re Dutch. It’s not,

Chris Williams:

Well, I don’t know, small hand, big gavel. Something that gets at the Trump judge angle that also gets at what Joe was saying earlier about the non-people elected people in positions of authority. There has to be, I think we need a better term that annoys them, but highlights the issue and Trump Judds gets at it. But I even think we need to dig deeper.

Joe Patrice:

This is something that I hadn’t really thought of until this conversation, but the way we’re talking about this got me to this. There is something somewhat tragic, comic ironic about people who argue that law should be defined not by what’s actually in the statute or what’s actually in the cases, but by grabbing random acontextual clips of what the mood of the world was at the time that it happened, a historical clips or whatever, but also want the historical record of the future to not mention the way in which they operate, the milieu in which they came to power, the way in which they’re thinking about it, like the whole nature of the movement and how it got to this point is much closer to an external, to the law informing of what the law is saying than a newspaper clipping from an 18 hundreds newspaper, which is what they’re relying on instead.

Kathryn Rubino:

And it’s still completely part of the context that this doesn’t happen without the electoral college because Donald Trump has never won the popular vote, which never happens if southern states didn’t want to had a problem with northern states being more populous when you don’t count slaves, right? It’s all related, and that context is still part of it, and we can’t pretend like these aren’t related. We’re back to talk about more Trump judges, but a different one this time. So progress,

Joe Patrice:

Okay, so what was this? Was this the Ninth Circuit situation?

Kathryn Rubino:

Yes, it sure was.

Joe Patrice:

Okay. The ninth Circuit had a opinion which was also about guns as it turned out, but it was a slightly different context. This is a opinion about some career criminals being told that they aren’t allowed to have guns because they’ve been convicted as career criminals. It is a reform that they have in California. It is one of those rules that a certain that has caused a lot of fracture amongst the pro-gun Judge lobby with some people like Clarence Thomas saying, yeah, that’s right. Criminals should have as many guns as they want because that’s the way this works. And the rest of the Supreme Court kind of arguing in the most recent Rahimi case about it going, whoa, whoa, whoa, hold on there. And so this was another version of that just in California. The decision by the panel basically went through the analysis and we’re like, look, we decided this before this thing. This is before Rahimi, so it doesn’t really control here, but I mean clearly Rahim tells us we were right. You can make that restriction.

That’s the history of it, and that’s what they write. So pretty standard in line with what was going on in Rahimi. There was an attempt to make this be heard on bonk that was denied because there was, everybody agreed there was no reason to move this from the panel to on bonk. There was no dispute that made it elevated. That said, judge Van Dyke, who is another appointed by Trump judge, chose this moment to write a 61 page dissent from the idea that it go on bunk. This 61 page dissent is about four or five pages of actually talking about the en banc part, and then 50 some odd pages of him just kind of giving his screed of why he thinks Rahim is wrong and that actually criminals should not be restricted in any way. At the end of this though, not so much the end of this, but before you get to that, because of the way we order court opinions, you can read a concurring opinion, which was put together by some of the judges on the whole panel, not the entire balance of the banc panel, but several of them joined a concurrence that called him out and was very specific like, this is wildly inappropriate.

This is not how we do things as judges. This is immature and inappropriate and non-judicial to be writing advisory dissents that have nothing to do with the case, that don’t have any standing, there’s no legal argument for you to be doing anything. Instead, you’re writing a 61 page thing, petulant behavior, and it needs to stop. Those words weren’t used, but the language was pretty harsh in legal terms too. This is actually not the first time this has happened. A previous opinion, van Dyke wrote an opinion where he called the rest of the Ninth Circuit criminals. He has in the past called them possessed, and a judge in the past wrote a very polite response saying like, Hey, this is inappropriate in a concurrence. This latest concurrence seems to have shown that the ire with this behavior has escalated quite a bit, and now we are seeing the rest of the ninth circuit be like, okay, it’s time to get act like adults here.

Kathryn Rubino:

I mean, this really puts in pretty sharp relief for me, the whole life tenure thing because could you imagine if you had to deal with an asshole coworker for the rest of your life?

Kathryn Rubino:

Yeah,

Kathryn Rubino:

I mean, that’s what that concurrent sounds like to me. Just like, man, it’s going to be a long few years.

Joe Patrice:

No, definitely. It also raises, you talk about life tenure. It also raises the issue of the qualifications reports of Van Dyke was rated by the A BA as not Qualifi

Kathryn Rubino:

Unqualified UN qualified

Joe Patrice:

To be a judge for a variety of reasons. And the way the ABA does this is they look at the record and experience of the person who’s appointed to be a judge, but they also then conduct interviews with people that they practice with against the judges there before to get a full picture of what this person’s experience was. And that report is one of the more damning, non-qualified reports I’ve ever seen, and there were several not qualified judges who were appointed in the last administration, but this one was wildly damning with some of the quotes from other lawyers who practiced in that area saying things like, he shows no signs of understanding how procedure works, really, really damning stuff about how he would be in over his head if he were a judge. And it has largely come to pass that that is how it worked out, but he was able to overcome that because there was political pressure to just ignore the not qualified rating and put him there anyway. And so now he’s a judge forever.

Kathryn Rubino:

He’s going to be writing a lot of dissent, so maybe in some ways he’s just really breaking that muscle in since he’s going to hopefully have to use it for a while.

Joe Patrice:

I mean, maybe things can come back around. So yeah, that is an interesting thing to look for. Obviously it’s more pronounced on that court, but it is something to look for these increasing tensions where there are judges who are using their position to just write random long screeds, and it’s basically like a publishing house for that. They treat the federal judiciary as a publishing house for their blog. Basically, they are doing this for the sole purpose of someday hoping that someone will use one of the advisory dicta that they put into some dissent as the basis for a later opinion, and this is how they do that, and it creates kind of a circular corpus

Kathryn Rubino:

Feedback loop.

Joe Patrice:

…of reasoning. Yeah. You see, there was a presentation, two things. You see, a lot of the reasoning that got into Heller came from a series of law review articles written by basically advocacy pieces that got into student run journals that said, Hey, the history says this. The history does not say that. Historians do not think it said that, but these law review people wrote in law reviews that it did. Those then got quoted. Then people said, well, hey, those were quoted by the Supreme Court, so now that’s the law. So it’s is a history that was just invented and repeated enough that it became codified. And putting aside this stuff here at the file buying conference, we had a presentation from the Innocence Project talking about junk science and how that got there, and it’s the same different motivations, but the same issue. There’s several scientific forensic issues, tactics in criminal law that have been debunked and debunked in a way where you wonder how they were ever bunked in the first place.

When you go back to the history of it, it never really had a basis, but it kept being repeated. There’s a case that was ultimately proven to be wrong, and it’s still the case that gets cited by everybody for why they can use this tactic, even though it’s one of the classic red flags. But that idea that you can utilize decisions as a way of building a corpus for an idea that is not justified is bad, and it’s one that I think we should be on the lookout for more. Van Dyke is a particularly bad actor on this front.

Kathryn Rubino:

I think it’s also interesting, your analogy that Van Dyke is basically just blogging with somebody guaranteed to publish it. I’m also, how does this reflect on his clerks? We talk a lot about clerkship bonuses and how clerk, federal clerkships are this great thing for your career, but I don’t know if I’m hiring, and I was like, oh, oh, maybe you don’t know the difference between good law and bad.

Joe Patrice:

I’ve been saying this for a while. If you are hiring and you are interested in hiring federal clerks, it has reached a point where it’s important that you consider who the judge is.

Kathryn Rubino:

So here’s my question based on that. Right? And there’s a lot of big law. Salary information tends to be very well-known and publicized and also lockstep, which I think is good for a bunch of reasons. But if you are in charge of hiring policies, do you publicize that there is a guaranteed signing bonus if you’re a clerk, do you risk not getting the word out that you’re excited and willing to hire if you’re not interested in hiring or giving clerkship bonuses for people who maybe don’t have clerkships that you value as much?

Joe Patrice:

No, no. You give the bonus no matter what, because the bonus is not about the skill of the worker. It’s to cover for how they were underpaid for the year that they were clerking. So you definitely give the bonus, but do you hire them in the first place? If you’re looking at somebody who has no clerkship versus somebody who clerked for Van Dyke, is it really one of those where you think, oh, well, I’ll get the federal clerk at that point? I honestly don’t know as though there’s a difference between them. That experience does not as an employer show me that I’m getting any advantage, and that’s definitely the case. A good example with Van Dyke in the first opinion where he called them criminals. He didn’t call them criminals. He insinuated that they were criminals with a rap sheet. The rest of the court,

Kathryn Rubino:

That’s better. What?

Joe Patrice:

Well, in that, that comes up in the context, in that opinion of a footnote that he includes where he says they’re wrong. The rest of the court, and I’m not going to cite any case law for it. My clerk put together a bunch of case law for it, but I don’t feel like it’s worth putting. So he even creates a footnote to say, Hey, my clerk isn’t an idiot. I’m refusing not to do it. Which also somehow made it seem worse that it really is that you as a clerk are not doing real work in that situation.

Chris Williams:

Sure. I think that there’s something, this just feels like the Joe Rogan podcasting experience, but judiciary speaking, I wonder how long it’s going to be until one of these judges is on the Joe Rogan experience.

Joe Patrice:

There is, and we’ve written in the past about the break the schism between whether or not judges think it’s okay to be in pop culture or not. The experience of Latter Day Ginsburg has several judges thinking that they aren’t supposed to be publicity hounds. Yeah.

Chris Williams:

I mean, yeah, I think we’re at a point where there’s no expectation that they follow the sort of decorum that would’ve been a given prior. Yeah.

Kathryn Rubino:

Our last story of the week is also more stuff to get angry at judges about the Second Circuit ruled that libraries disincentivized writing apparently.

Joe Patrice:

Yes, so this was a second circuit tech case, internet archive, in addition to making the way back machine that we all love to use when somebody tries to hide the fact that they said something awful several years ago,

Kathryn Rubino:

They actually perform a public service.

Joe Patrice:

In addition to that, one of the things that they do is scan physical copies of books, often books that would otherwise go out of print, and that is another thing. When copyright law got extended, there’s a horrifyingly sad graph that exists of how many books are out there, how many different books are out there, and it just falls off a cliff. As soon as the copyright got extended, the amount of printing of a whole generation of books disappeared. That used to be kept in somewhat of circulation. So there is a history that’s being lost because of that, what internet archive endeavored to do was buy physical copies of these books, scan them and set up a situation where somebody could just, like a lending library, lease out the book for a bit, read it, and when it was done, they would lose digital access to it. It goes back to the archive. This is exactly how a library works, given that it’s exactly how the library works,

Kathryn Rubino:

The reason you literally open library project. So yeah, it’s a library.

Joe Patrice:

Well, right, but there is a distinction, and the distinction is the key here, because a physical book, when you buy a physical book, you have the right to give that physical book, sell it, do whatever with that physical book, but you don’t have the right to reproduce that physical book. So the argument of an actual brick and mortar lending library is they bought the physical books, they’re in there. The fact that they rent them out to people means that they aren’t conferring any reproduction rights. However, with digital stuff, it’s different. When you’re scanning it and doing all that, you are creating copies of it in a technical sense, and so that’s the distinction. That said, if you’re analogizing this, that seems like the wrong distinction, especially when you’re reasoning why it would be bad for them to have the system is it would disincentivize authors, because if that’s the reason you have, then there’s not really an argument why the physical lending wouldn’t do that either, because if the idea is you don’t buy it.

Kathryn Rubino:

Yeah. I mean, the actual decision while is about internet library systems is very much reads as if these library things are terrible for copyright, and also that’s the other thing that really gets me, I don’t think there are a tremendous amount of authors out there being like libraries bad. I mean, if anything, I think authors tend to be in support of their local libraries and probably even digital libraries, but what who isn’t in support of it is the copyright holders, the publishing houses, the ones who stand to make additional money from it, that they’re not the ones who are creating anything. They’re just the ones who are selling additional copies of it who are reaching. So it’s really not about the intellectual or artistic endeavors involved. It’s really about this is just the most neoliberal decision that I’ve read in a really long time.

Joe Patrice:

Yeah, it’s bad, and of course there’s another doctrinal separation is that with a physical copy of a book that you are like, the end user of that physical copy is ownership of at least the copy of the book. A lot of the ways in which digital publishing through these publishing houses is operated, and this is true of your music and lots of your video games or whatever, is that you actually don’t buy the copy of it. You buy a license in perpetuity, a revocable license in perpetuity, so you don’t actually own the song or book that you bought for your e-reader. You own a license to it that the publisher reserves the right to take away from you despite the fact that you paid for it. Part of that difference legally is that they argue that therefore it takes it out of being a corollary with the brick and mortar library example because, well, that’s when people bought books, but they’re only buying licenses from us, which is a horrifying way to get around a law that exists for, it exists for social reasons. I mean, we have the law set up the way we do because how copyrights operates is supposed to be for the purpose of advancing scholarship. It is supposed to be about encouraging authors to feel protected enough to go out and do things. Instead, we’re creating a situation where there’s more closure, more gatekeeping and less information out there, which is kind of the opposite of the point of intellectual property law. But here we are.

Kathryn Rubino:

Yeah, I mean, I think that the actual point has become in our current world, but intellectual property is much more about making sure that certain people get to continue making money, which kind of brings me to one of the other sort of more shocking and disingenuous parts of the decision, which is that they talk about, even though the internet arch archive is set up as a nonprofit, but because they accept and solicit donations, the second circuit’s like, so you’re not actually a nonprofit, which I think is incredibly problematic, not just for this particular case, but potentially for a lot of other ones as well.

Joe Patrice:

Brick and mortar libraries collect late fees. Does that mean that they’re so egregious?

Kathryn Rubino:

Yeah, it’s a real shame. I think that one of the sort of societal great things that humanity has ever done is create libraries somewhere where everyone has access to information and in it’s really, I think, a turning point as a species that is no longer sort of the pinnacle of what we do. We’re already starting to chip away at that sort of altruistic sentiment.

Joe Patrice:

Well, all right then. I think we’ve been going for a reasonable amount of time, so we can wrap it up. Let’s everybody, you should subscribe to the show on whatever you want to get your podcasts from so you get new episodes when they come out. You should leave reviews, stars, write things. All of that helps get more visibility for it. You should be listening to other shows. You can listen to the Jabot. I’m a guest on the Legal Tech Week Journalist Roundtable. Again, listen to the other offerings of the Legal Talk network that we aren’t on every week. You should be reading Above the Law, so you read these and other stories before we chat about them here, you should be following on social media. It’s at ATL blog. I’m @JosephPatrice. She’s @Kathryn1. Chris is @WritesforRent. We exist on Blue Sky too, except I’m Joe Patrice. Over there. We have, yeah, that’s I think all of our public service announcements.

Kathryn Rubino:

Peace.

Joe Patrice:

Alright, bye.

Chris Williams:

Peace.

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