Scott has said that August Flentje, the Justice Department lawyer who defended the administration’s executive order limiting entry to this country, did not argue effectively. Even taking into account how difficult it can be for an appellate advocate to deal with a hostile panel, especially over the telephone, I must agree.
I’m told that Flentje won an award from Eric Holder for leading the team that argued that DOMA was indefensible. This doesn’t mean that Flentje did less than his best in defending President Trump’s order; nor does it mean that his heart wasn’t in it. I don’t know how Flentje feels personally about DOMA or about the immigration order.
The problem with having him defend that order resides elsewhere. For a case like this, the government’s advocate should not have been a career DOJ employee, and certainly not one as uninspired as Flentje showed himself to be. The case should have been argued by Noel Francisco, the acting solicitor general and an outstanding advocate.
Why wasn’t it? Because a partner at the law firm of Jones Day, where Francisco practiced until last month, filed an amicus brief with the Ninth Circuit arguing that the executive order is illegal. Meir Feder, an appellate lawyer in the firm’s New York office, submitted the brief on behalf of professors from Boston University, Yale Law School, University of Texas School of Law, and New York University School of Law.
As a result Francisco recused himself. So did acting assistant attorney general Chad Readler, also formerly of Jones Day.
Was recusal required? I doubt it, but have not thoroughly researched the matter.
The last minute Jones Day filing left Francisco and his team with little time to research and analyze the recusal issue. The DOJ brief states: “The acting solicitor general and acting assistant attorney general have refrained from signing this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their former law firm.”
I don’t blame Francisco for being abundantly cautious. I do hope he’ll be able to reenter the battle over the executive order, which won’t end when the Ninth Circuit panel upholds the lefty district judge’s order.
The moral of this story is that “big law” is part of the “resistance,” just as it was at key times during the Bush administration. Perhaps even Jones Day, now that more than a dozen lawyers have left to serve in the administration, will be a permanent part of it, though the brief that Feder filed on behalf of leftist law professors — the one that sidelined Francisco and Readler — may prompt some discussion within the firm.
UPDATE: What happens at “big law” when a partner advocates a conservative position in a hot button case? At King & Spaulding, the firm withdraws from the litigation.
That was the scenario when Paul Clement, former solicitor general of the United States whom many regard as the best Supreme Court practitioner around, signed on to lead the legal defense of DOMA. Authoritarians in the gay and lesbian community raised hell, and King & Spaulding stood down.
Clement resigned and continued to lead the DOMA defense team from outside of “big law” at his new firm, a “boutique.”
Big law: The swamp that can’t be drained.