The Biglaw executive order saga has a new twist, and it’s a good one, or at least as good as things can get when you’re heading into an appellate court knowing one of three judges is going to vote against you no matter what argument you make, because she has a Supreme Court seat to audition for.
But we’ll get to Neomi Rao in a moment.
When oral argument kicks off on May 14th at the D.C. Circuit, the four firms that had the actual courage to fight back against Donald Trump’s retaliatory executive orders — Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey — will be represented by none other than Paul Clement, the former Solicitor General of the United States under President George W. Bush.
Let that sink in. A conservative legal legend, a man with over 100 Supreme Court arguments to his name, is about to stand up in the D.C. Circuit and tell this Republican administration that what it did to these law firms was flat-out unconstitutional. Clement will bring his conservative credibility to a case over Trump’s allegations of partisan lawfare against members of the legal profession. That’s not nothing.
To be clear, Clement isn’t exactly a newcomer to this litigation. He was initially hired to file legal action for WilmerHale, and it was his firm, Clement & Murphy, that filed that complaint mere hours after the Trump administration issued its retaliatory EO against the firm. And this isn’t the first time in the Trump II era that Clement has been willing to court the president’s ire in defense of the rule of law, though it is a far cry for someone famous for fighting against marriage equality, with an expansive view of the Second Amendment, who once complained Kirkland & Ellis was too woke. Strange times, strange bedfellows and all that. At the outset, Clement called the case “absolutely critical to vindicating the First Amendment, our adversarial system of justice, and the rule of law.” He’s been in this fight from the jump. Now he’s the one walking up to the podium on behalf of all four firms, joined by Abbe Lowell, to make the argument that even a former GOP SG finds these EOs indefensible.
The constitutional case Clement is walking in to argue remains, as four district court judges made clear in four separate rulings, not a close call. The four firms argue that the executive orders violate the First Amendment by retaliating against protected conduct, discriminating based on viewpoint, and interfering with the right to associate with clients and petition the courts — and also violate the Fifth Amendment’s Due Process Clause and equal-protection guarantee, the right to counsel under the Fifth and Sixth Amendments, and separation-of-powers principles. Every district court judge who looked at these EOs, across the ideological spectrum, reached the same conclusion: NOPE.
The DOJ, for its part, is appealing despite having first dropped these appeals, then un-dropped them roughly 24 hours later after what I can only assume was a very uncomfortable phone call from someone at 1600 Pennsylvania Avenue. Perkins Coie’s brief has been particularly pointed about the whiplash, calling the order “indefensible” and noting that “the Department of Justice previously declined to defend it in this Court, moving to dismiss this appeal before abruptly reversing course at the President’s direction.” The DOJ essentially handed the four firms a gift-wrapped admission that even they know this is a loser case — and now they have to defend it anyway. With a straight face.
Now, about that panel.
The D.C. Circuit assigned Chief Judge Sri Srinivasan and Judges Cornelia Pillard and Neomi Rao to hear the May 14 arguments. Two Obama appointees and one Trump appointee. For two-thirds of this panel, that’s a decent draw.
Let’s be real about the third.
Neomi Rao is not going to side with these firms. Not because the law is against them — it isn’t, and she (probably) knows it — but because Rao has spent her entire appellate career writing her Supreme Court résumé in the margins of opinions that hand the executive branch whatever it wants. We’ve watched her do it before. With Donald Trump publicly hyping his SCOTUS shortlist, Rao could not be more jazzed to show off her unswerving loyalty to the administration that installed her on the Supreme Court farm team bench. That was true in 2020. It is, if anything, more true now, with a vacancy potentially on the horizon and Rao acutely aware that every opinion she writes is being read at the White House. Judge Thirsty has been, well, thirsty for years and nothing she’s done since has given us reason to update that assessment.
Rao has been an open conservative troll for forever, slapping legal jargon on political talking points. And even when the full D.C. Circuit has had to step in and clean up her messes, she has persisted. After all her work penning what’s been described as an “embarrassing mixtape of judicial activism and anti-textual hot takes that she hoped would win her a seat on the country’s highest court,” a high-profile dissent against the Trump administration in a case about the Trump administration’s power to punish law firms is simply not in the cards. She is too thirsty for that seat to let something as inconvenient as the Constitution get in the way.
So the realistic math here is 2-1 for the firms, which is still a win… and still sends the whole thing up to a Supreme Court that, as we’ve noted with some anxiety, has proven itself disturbingly willing to bend norms for this president.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post The Biglaw EO Cases Head To The D.C. Circuit With A Hall-Of-Fame Advocate — And One Very Thirsty Judge appeared first on Above the Law.
The Biglaw executive order saga has a new twist, and it’s a good one, or at least as good as things can get when you’re heading into an appellate court knowing one of three judges is going to vote against you no matter what argument you make, because she has a Supreme Court seat to audition for.
But we’ll get to Neomi Rao in a moment.
When oral argument kicks off on May 14th at the D.C. Circuit, the four firms that had the actual courage to fight back against Donald Trump’s retaliatory executive orders — Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey — will be represented by none other than Paul Clement, the former Solicitor General of the United States under President George W. Bush.
Let that sink in. A conservative legal legend, a man with over 100 Supreme Court arguments to his name, is about to stand up in the D.C. Circuit and tell this Republican administration that what it did to these law firms was flat-out unconstitutional. Clement will bring his conservative credibility to a case over Trump’s allegations of partisan lawfare against members of the legal profession. That’s not nothing.
To be clear, Clement isn’t exactly a newcomer to this litigation. He was initially hired to file legal action for WilmerHale, and it was his firm, Clement & Murphy, that filed that complaint mere hours after the Trump administration issued its retaliatory EO against the firm. And this isn’t the first time in the Trump II era that Clement has been willing to court the president’s ire in defense of the rule of law, though it is a far cry for someone famous for fighting against marriage equality, with an expansive view of the Second Amendment, who once complained Kirkland & Ellis was too woke. Strange times, strange bedfellows and all that. At the outset, Clement called the case “absolutely critical to vindicating the First Amendment, our adversarial system of justice, and the rule of law.” He’s been in this fight from the jump. Now he’s the one walking up to the podium on behalf of all four firms, joined by Abbe Lowell, to make the argument that even a former GOP SG finds these EOs indefensible.
The constitutional case Clement is walking in to argue remains, as four district court judges made clear in four separate rulings, not a close call. The four firms argue that the executive orders violate the First Amendment by retaliating against protected conduct, discriminating based on viewpoint, and interfering with the right to associate with clients and petition the courts — and also violate the Fifth Amendment’s Due Process Clause and equal-protection guarantee, the right to counsel under the Fifth and Sixth Amendments, and separation-of-powers principles. Every district court judge who looked at these EOs, across the ideological spectrum, reached the same conclusion: NOPE.
The DOJ, for its part, is appealing despite having first dropped these appeals, then un-dropped them roughly 24 hours later after what I can only assume was a very uncomfortable phone call from someone at 1600 Pennsylvania Avenue. Perkins Coie’s brief has been particularly pointed about the whiplash, calling the order “indefensible” and noting that “the Department of Justice previously declined to defend it in this Court, moving to dismiss this appeal before abruptly reversing course at the President’s direction.” The DOJ essentially handed the four firms a gift-wrapped admission that even they know this is a loser case — and now they have to defend it anyway. With a straight face.
Now, about that panel.
The D.C. Circuit assigned Chief Judge Sri Srinivasan and Judges Cornelia Pillard and Neomi Rao to hear the May 14 arguments. Two Obama appointees and one Trump appointee. For two-thirds of this panel, that’s a decent draw.
Let’s be real about the third.
Neomi Rao is not going to side with these firms. Not because the law is against them — it isn’t, and she (probably) knows it — but because Rao has spent her entire appellate career writing her Supreme Court résumé in the margins of opinions that hand the executive branch whatever it wants. We’ve watched her do it before. With Donald Trump publicly hyping his SCOTUS shortlist, Rao could not be more jazzed to show off her unswerving loyalty to the administration that installed her on the Supreme Court farm team bench. That was true in 2020. It is, if anything, more true now, with a vacancy potentially on the horizon and Rao acutely aware that every opinion she writes is being read at the White House. Judge Thirsty has been, well, thirsty for years and nothing she’s done since has given us reason to update that assessment.
Rao has been an open conservative troll for forever, slapping legal jargon on political talking points. And even when the full D.C. Circuit has had to step in and clean up her messes, she has persisted. After all her work penning what’s been described as an “embarrassing mixtape of judicial activism and anti-textual hot takes that she hoped would win her a seat on the country’s highest court,” a high-profile dissent against the Trump administration in a case about the Trump administration’s power to punish law firms is simply not in the cards. She is too thirsty for that seat to let something as inconvenient as the Constitution get in the way.
So the realistic math here is 2-1 for the firms, which is still a win… and still sends the whole thing up to a Supreme Court that, as we’ve noted with some anxiety, has proven itself disturbingly willing to bend norms for this president.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post The Biglaw EO Cases Head To The D.C. Circuit With A Hall-Of-Fame Advocate — And One Very Thirsty Judge appeared first on Above the Law.
