Author: TSA Press

Given her reported “obsessive attention to detail”—you know, the meticulous diligence that earned her the nickname “the watchmaker”—you might expect Carrie Tolstedt to have noticed the literally millions of unauthorized accounts opened during her tenure as Wells Fargo’s consumer-banking chief. But apparently hers wasn’t so particularly watchful an eye, because when trumpeting Wells’ now rather-discredited emphasis on cross-selling, she apparently had no idea. Indeed, she was just reading the script they gave her, whoever they are.

I look forward to continuing to help grow and lead SouthBank Legal’s litigation-related practice groups and serve our clients.

— Jesse Barrett, the husband of recently confirmed Supreme Court Justice Amy Coney Barrett, in a statement on his law firm’s website. Other justices’ spouses has left private practice after the confirmation of their Supreme significant others to the high court. Barrett, like his wife, has not practiced in front of the U.S. Supreme Court, which would be an “obvious” conflict of interest per Michael Frisch, ethics counsel and adjunct professor at Georgetown Law.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

There was a point a few years ago when South Carolina Senator Lindsey Graham was trying to posture himself as the heir to John McCain’s “Maverick” brand. But Graham fumbled that away and transformed himself into one of the central personalities of the MAGAverse. It’s a decision that gives him a vested interest in salvaging the Trump administration so he can think about another failed presidential bid in 2024 instead of having to stand aside and cheer on Trump’s Grover Cleveland bid.

Which is presumably why a Senator with no real reason to stick his nose into Georgia’s electoral system found himself calling Georgia’s Republican Secretary of State and asking him… stuff:

In an interview with the Washington Post, Raffensperger said that his fellow Republican, the chairman of the Senate judiciary committee, questioned him about the state’s signature-matching law and asked whether political bias might have played a role in counties where poll workers accepted higher rates of mismatched signatures. According to Raffensperger, Graham then asked whether he had the authority to toss out all mail-in ballots in these counties.

That does not sound good at all!

For his part, Graham laughed off the idea that asking the Secretary of State about whether or not he could throw away legally cast ballots was actually an invitation to throw away legally cast ballots.

Graham confirmed the conversation to reporters on Capitol Hill but said it was “ridiculous” to suggest that he pressured Raffensperger to throw out legally cast absentee ballots. According to Graham, he only wanted to learn more about the process for verifying signatures, because what happens in Georgia “affects the whole nation”.

“I thought it was a good conversation,” Graham said on Monday after the interview was published. “I’m surprised to hear he characterized it that way.”

Oh? Graham was surprised that Raffensperger interpreted this comment as a call to toss legal ballots because they were inconvenient to the White House? Someone who was not surprised by Raffensperger’s take was Georgia official Gabe Sterling:

The path of “whether whole counties… could be thrown out” is a hell of a path!

That said, this seems to be shaping up as one of those classic “all I said was that he had a nice store and it would be a shame if something happened to it” remarks. Graham didn’t say anything that could actually be construed as illegal, but also not anything that makes one feel comfortable. When a national figure is leaning on a state official and casually tossing around questions about “the path to throwing out certain unfavorable counties” it doesn’t inspire confidence. It’s simply not a suggestion that people make unless they’re trying to convince the other person to take an action that at least constitutes a wild abuse of the legal rules if it’s not outright illegal.

But for everyone about to pile on calling Graham a criminal, it’s worth remembering that Graham is a lawyer and spent his years in the military on both sides of criminal prosecutions. Without knowing exactly what words he used in this conversation, it’s safe to say he made every effort to guarantee that he didn’t fall on the wrong side of the law.

But it’s not “good” in any legal sense.

Georgia’s secretary of state says Lindsey Graham suggested he throw out legal ballots [The Guardian]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

A new lawsuit filed last week accuses two attorneys at Littler of knowingly infringing upon the intellectual property of others. The Center for Workplace Compliance (CWC), a members-only organization, says in their complaint that Littler shareholder Lance Gibbons and principal Chris Gokturk improperly accessed CWC materials and used them as the base of their own client presentations.

As the filing notes, both Gibbons and Gokturk previously worked for CWC — as CWC’s assistant general counsel and senior adviser for compliance solutions, respectively — and were aware law firms are specifically barred from CWC membership (to allow members to have an open and frank conversation about workplace compliance issues and to prevent firms from accessing CWC’s proprietary information). Despite this, CWC alleges the Littler attorneys repeatedly accessed members-only materials:

“The scale and scope of this unlawful conduct from the Littler IP address was extraordinary. Over the course of approximately seventeen (17) months beginning at least in November 2018, Defendant Littler’s servers were used to unlawfully obtain CWC Members-Only Site materials approximately four hundred forty-two (442) times.”

As reported by Law.com, this allegedly didn’t stop the attorneys from getting access to CWC materials and then using them for their own purposes:

Nonetheless, Gibbons allegedly told a Littler client and CWC member that he needed access to the client’s CWC password to access one particular CWC memorandum. Instead, Gibbons gained access to a significant number of materials over months and requested the client’s updated password multiple times after it was changed, according to the suit.

Gibbons and Gokturk then allegedly used these materials to prepare their own presentations for clients, removing CWC copyright notices and substituting Littler’s own copyright notice.

Littler has made a statement about the allegations disavowing any knowledge of the allegations (additionally, based on a look of the firm’s website, it seems Gibbons is no longer at the firm):

“Littler values and respects intellectual property rights, and we expect our attorneys to do the same,” a firm spokeswoman said Monday. “The firm had no knowledge at the time of the alleged actions. As soon as we were made aware of the situation, we initiated an investigation and took immediate action based on our findings. As this is an ongoing litigation matter, we cannot provide any further comment.”

But that may not be enough to get them out of legal ramifications however. The complaint is alleging the firm didn’t do enough to stop the breaches:

“Defendant Littler failed to implement appropriate controls and reasonable safeguards including best practices for employers to avoid the recurring and voluminous misappropriation of intellectual property of CWC by defendant Gibbons and defendant Gokturk, along with possibly other employees, over a substantial period of time,” the complaint said.

The complaint alleges two counts of copyright infringement, two counts of violating the Computer Fraud and Abuse Act, one count of fraud, and one count of alternation of copyright management information.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. 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).

The artificial intelligence software Text IQ recently helped Cravath Swaine & Moore secure one of the top industry awards for technological innovation. 

Now, you can hear directly from Cravath’s lead eDiscovery counsel about how AI is helping lawyers speed the privilege review process while enhancing — not sacrificing — the quality of this critical legal work. 

Scott Reents of Cravath is one of several industry leaders in Text IQ’s on-demand webinar, which also features Judge Andrew Peck, a longtime U.S. magistrate judge in the Southern District of New York and current senior counsel at DLA Piper; Laura Kibbe, assistant general counsel at IQVIA;
and Bobby Malhotra, eDiscovery counsel at Munger Tolles & Olson.

These panelists also explore how AI can help in-house teams transform litigation, cut costs, and add predictability to their budgets, among other benefits.

Additional topics covered:

• Privilege Review 101: Definitions and Nuances
• The evolving view of the courts
• Advances in technology
• What the future holds

Fill out the form below to ensure your legal team is operating at the cutting edge of this key practice area.

It’s been almost one week since Baker McKenzie unexpectedly kicked off Biglaw’s 2020 bonus season, and the announcement has been met with crickets. To be honest, no one thought Baker of all firms would be the one to make the first move, and based on associates’ responses to our annual bonus and billable hours survey, no one really thought this year’s bonus scale would be announced as early as it was due to the ongoing pandemic. Thirty-four percent of our respondents think a big bonus announcement will drop sometime this week, while 33 percent think it will come next week. As a reminder, last year, bonuses were announced on November 7, and the year before that, bonuses were announced just before Thanksgiving, in the second to last week of November.

Based on past precedent, it seems much more likely that if Cravath is the first firm to announce after Baker McKenzie, bonuses should be expected on either Monday, November 30, or Monday, December 7. This seems really far away, but Cravath tends to stick a schedule as far as these things are concerned, and in recent years, it has announced its bonus news on either the last Monday in November or the first Monday in December. But with Milbank in the mix, it’s really hard to say what will happen. The firm announced last year’s bonus scale on the first Thursday of November and it announced the $190K salary scale on the first Monday of June back in 2018. The firm seems to like to announce things during the first week of the month, and that’s already come and gone. Unfortunately, there may no rhyme or reason when it comes to the rest of this year’s big bonus announcements.

While associates are busy counting down the hours until Bonus Day, they’re likely even busier counting up the hours they’re on track to bill in 2020 to meet their targets for bonus eligibility. Just how much are associates expected to bill during a worldwide health crisis? The answer is: still quite a lot. About 66 percent of our survey respondents are on track to bill 2000 hours or more (much more, actually) in 2020.

Here are the full results from our survey:

Remember these strong numbers when bonuses begin to hit bank accounts. You may have worked your Biglaw bums off, but 80 percent of survey respondents thought that this year’s bonuses would be no different than last year’s bonuses, not including COVID bonuses — and they were right. Baker McKenzie’s bonus scale is last year’s bonus scale, and no mention of additional bonuses in light of the coronavirus crisis was made. Davis Polk set the standard on those bonuses, which ranged from $7,500 to $40,000. Keep this in mind, associates (and Biglaw management): If 2020’s year-end bonuses are the exact same as 2019’s year-end bonuses, total bonus compensation in 2020 will be substantially lower, since associates at many high-end firms also received appreciation bonuses in generous amounts earlier this fall.

Either way, Biglaw associates can soon look forward to their bank accounts being stuffed like the Thanksgiving turkeys they’ll gobble down next week.

As a little reminder, we love covering the Biglaw bonus season, but we need your help. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”). We always keep our sources on bonus stories anonymous. There’s no need to send the memo using your firm email account; your personal email account is fine. Please be sure to include the memo as proof; we like to post complete bonus memos as a service to our readers. You can take a photo of the memo and attach as a picture if you are worried about metadata in a PDF or Word file.

Don’t forget, if you’d like to sign up for ATL’s Bonus Alerts, please enter your email address in the box below. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish — including, of course, the first such announcement.

Keep your fingers crossed for happy bonus news this season!

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Is it appropriate for an attorney to make false representations about himself in a court filing? Asking for a former federal prosecutor who seems to have neglected to pay his bar dues in DC.

So when America’s Mayor stated on his application to appear pro hac vice on behalf of the Trump campaign in Pennsylvania that “I am a member of the bar in good standing in every jurisdiction where I am admitted to practice,” he was perhaps a bit wide of the mark.

As we noted on these pages a year ago, Mr. Giuliani appeared to practicing law in the District while on inactive status.

Nonetheless, the president’s pro bono attorney’s application was approved by U.S. District Judge Matthew Brann, so, unless that approval is revoked due to lack of candor by a member of the bar, Giuliani will presumably appear on behalf of the Trump campaign at this afternoon’s hearing.

Giuliani joins the third set of lawyers since the Trump campaign filed suit against the Pennsylvania Secretary of Commonewealth Kathy Boockvar on November 9. Porter Wright Morris & Arthur withdrew their appearance on the 12th, and the two Texas lawyers who replaced them noped out yesterday.

Judge Brann refused to allow local counsel Linda Kerns to withdraw her appearance immediately, although she seems likely to be replaced by Harrisburg attorney and talk show host Marc Scaringi. On his November 7 show, Scaringi opined that “There really are no bombshells that are about to drop that will derail a Biden presidency, including these lawsuits. At the end of the day, in my view, the litigation will not work. It will not reverse this election.”

What prompted Mr. Scaringi’s change of heart in the intervening days? Surely not the progress of the Pennsylvania case, which was massively curtailed after the Third Circuit ruled that political candidates lack standing to sue the Commonwealth to enforce its own election laws. The Trump campaign massively pared back its complaint, nixing five counts of action relating to the alleged exclusion of Republican observers during the vote count.

In the remaining two counts, the campaign charges that the four counties which contacted voters who had mailed in defective ballots and allowed them to vote provisionally violated the Equal Protection rights of citizens in other counties. Despite the fact that the Secretary of Commonwealth encouraged all the counties to do exactly that.

As the defendant noted in a motion to dismiss filed yesterday:

The Secretary disseminated her guidance regarding this issue to all counties; the fact that some counties opted not to embrace such an option does not mean that those counties that did violated the Constitution. Election practices need not cater to the lowest common denominator, and Plaintiffs’ arguments would improperly penalize those counties that took steps to ensure the enfranchisement of voters by helping them avoid ballot disqualification.

Upon entering his appearance yesterday, Mr. Scaringi requested a postponement of today’s hearing so he could familiarize himself with the case. This motion was immediately denied by Judge Brann, who seemed unimpressed with such a request being issued at 7:40 p.m. on the eve of a 1:30 p.m. hearing.

Which leaves us with a federal hearing in a critically important — if totally doomed — election case, in which the incumbent president is represented by one attorney who has requested to withdraw her appearance, one attorney who has publicly said the case is crap, and one attorney who hasn’t entered is appearance in a federal court since 1992, already misrepresented himself to the court, and recently got caught by Borat with his hand down his pants.

Because … 2020.

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

Attorneys for GOP-controlled states seeking to kill the Affordable Care Act told the Supreme Court last week that at least some of the 12 million people who newly enrolled in Medicaid signed up only because of the law’s requirement that people have insurance coverage — although a tax penalty no longer exists.

The statement drew a rebuke from Justice Sonia Sotomayor, who said it belies reason. Several health experts also questioned the argument that poor people apply for Medicaid not because they need help getting health care but to meet the ACA’s individual mandate for coverage.

The point is vital to the Republicans’ case to overturn the ACA, an effort supported by the Trump administration. The states are trying to prove they were harmed by the 2010 health law — and thus have “legal standing” to challenge its constitutionality. They argue their Medicaid spending increased because of the mandate, even though Congress eliminated the tax penalty for not having health coverage in 2019. Even when the penalty existed, most poor people were exempt because of their low income.

Under the ACA, states can opt to expand Medicaid eligibility to all adults earning less than 138% of the federal poverty level, or about $17,600 for an individual. States and the federal government share the cost of their care.

If the states cannot prove they have standing, the justices can toss their case without ruling on its merits. The case also involves two individuals who purchased private insurance from Texas and are suing to have the law overturned.

The Medicaid costs issue was one of several ways Texas and other GOP-controlled states participating in the lawsuit say they were harmed by the ACA even after the individual mandate penalty was reduced to zero. Several justices, including conservatives Clarence Thomas and Amy Coney Barrett, posed questions about whether the states had standing.

The case heard last Tuesday, California v. Texas, was the third time the high court has taken up a major suit on the ACA. Republican attorneys general in 18 states and the Trump administration want the entire law struck down, a move that would threaten coverage for more than 20 million people, as well as millions of others with preexisting conditions, including COVID-19.

Even if the court rules the states have legal standing, the ACA opponents must prove the elimination of a penalty makes the entire law unconstitutional.

The Republican states assert that since the law was upheld under Congress’ taxing powers by the Supreme Court in 2012, once the tax penalty is gone, the entire law must fall, too.

A group of Democratic-controlled states led by California and the Democratic House of Representatives are urging the court to keep the law in place.

Sotomayor raised serious doubts about the plaintiffs’ Medicaid argument and whether the states had suffered injury.

“At some point, common sense seems to me would say: Huh?” Sotomayor told Kyle Hawkins, Texas’ solicitor general, who is leading the GOP states’ legal fight. She questioned whether it seemed reasonable that once Medicaid enrollees are told there is no tax penalty for people who don’t have coverage they would “enroll now, when they didn’t enroll when they thought there was a tax? Does that make any sense to you?”

Hawkins defended his case, saying states need to show that only one person signed up for Medicaid because of the individual mandate. “There’s a substantial likelihood of at least one person signing up for a state Medicaid program, which, of course, would cause at least one dollar in injury and satisfy the standing requirement,” he said.

He cited a Congressional Budget Office report issued in 2017, when lawmakers were considering the change in the penalty. It said some people would continue to buy insurance or seek coverage “solely because of a willingness to comply with the law,” even if the individual mandate penalty were eliminated.

Few surveys have asked Medicaid enrollees why they signed up for the program.

One of them, by University of Michigan researchers that same year, posed the question to 1,750 adults who had become eligible for Medicaid in the state as a result of the ACA expansion. The most common reasons respondents gave for enrolling were that they had lost other health coverage and had a medical condition that required care. Just 2% of respondents cited the need to avoid the individual mandate tax penalty.

With the tax penalty eliminated, legal and health policy experts said, it’s likely the share of respondents signing up for Medicaid because of the health coverage mandate has dropped closer to zero.

Richard Kay, a law professor emeritus at the University of Connecticut, said it’s clear most people don’t seek coverage because of the individual mandate — particularly since there is no longer a financial penalty. But there could be a few who still do.

“Do you stop at a stop sign if you are in the country and no one is around for miles?” he said. “It’s not impossible that some people get insurance just because the law requires them.”

Kay said there is no precise guidance on how courts decide whether a plaintiff has been penalized enough to prove it has legal standing. “It’s a very confused area of the law,” he said.

Pratik Shah, a Washington, D.C., attorney who represents America’s Health Insurance Plans, a trade group fighting to preserve the law, said the plaintiffs in the case have not proved standing.

“It does not make logical sense,” he said of the argument that state budgets were harmed by people signing up for Medicaid even after the individual mandate penalty was eliminated.

“It’s hard to see how the 2017 amendment to the health law would have forced more people into Medicaid,” he said. “If they weren’t signed up before, they would be less likely to get it without the penalty.”

The court is expected to rule on the case by the end of June.

Photo: artisteer, Getty Images

When I went to the NYU School of Law, my Contracts professor had to take a leave of absence mid-semester and was replaced by another faculty member. We continued with the same material, but with the subtle differences in emphasis professors are bound to have and confusion over who would grade the exams, the school decided to give everyone a Pass/Fail mark for that semester. And you know what? Nothing dire came from that move. We all moved on and all got our jobs and everything was fine because Biglaw interviewers are capable of understanding “we had two professors, so it was a mess.”

Which is why I feel a sense of deja vu when I learn that NYU has a Civ Pro section with three professors right now and the school is playing coy about whether or not it’s going to call the game and issue a Pass/Fail grade.

It all started when Arthur Miller fell and suffered a spinal injury. Professor Miller is thankfully on the mend, but the school’s approach to covering his class created an epic patchwork involving joining John Sexton’s section for class, but having Harold Koh teach a separate part of the class, and then Professor Miller grading everything at the end? I guess? Look at this schedule:

First, you will be provided remote access to Professor Sexton’s Civil Procedure class.

Second, on Mondays and Wednesdays, you will attend Professor Sexton’s class synchronously and remotely (8:40-10:20).

Third, on Tuesday and Thursday, you are conflicted by other classes from attending the hybrid elements of Professor Sexton’s class; so, you will be responsible for attending class asynchronously through the video of the class, with the Thursday/Friday option that is described below.

Fourth, on Tuesdays you must use the asynchronous video; but, on Thursday you may choose either to watch the video of Professor Sexton’s treatment of the material or to attend a remote class on Friday on the same material (In the slot regularly scheduled for your Civil Procedure class) taught by Professor Harold Koh.

That reads like one of those terrible take-home exams that says, “You must answer three of these questions, but if you answer 1 you cannot answer question 4 and if you answer 3 you must also answer question 8….” You’re already in law school, you don’t need to do another LSAT game just to answer the exam.

Anyway, the zany arrangement outlined above was the original best-case scenario. The schedule has actually changed multiple times since, including the announcement of the emergency addition of three more lectures because the calendar they came up with left students short of ABA minimum requirements.

And this is just the “How it started” of this meme. How’s it going, you ask?

We have no coherent syllabus, and it is unclear which cases and concepts we are expected to have covered. This is exacerbated by TA review sessions that cover material we have not addressed in class. There have also been multiple times where our professors contradict each other: Professor Miller referencing material that we did not cover in his absence; similar but different explanations of the Byrd test from Professors Koh and Sexton; in-class disagreement between Professors Sexton and Miller about federal statutes; etc. This is perhaps best illustrated by the fact that we were given three separate descriptions of the applicability of the Erie doctrine, a topic that is confusing enough on its own. It is still unclear which nuanced interpretation of the doctrine we will be expected to apply on the exam. To make up for the ambiguity and confusion, we often have to resort to rewatching multiple Panopto class recordings in order to figure out what exactly we are supposed to take away from each class block. The net effect is akin to a game of connect-the-dots – but one where each “dot” is always in flux.

That’s from a letter signed by the majority of the section seeking a Pass/Fail option under these circumstances. In a lot of ways, these students are getting the best Civ Pro education around — they’re not only covering the material but watching how top scholars can quibble about the margins. That said, what’s good for actual learning is not always a great recipe for grading.

After a whole semester of Spring 2020 Pass/Fails, maybe law schools are gun shy about heaping on more, but these 1Ls weren’t privy to any of that and shouldn’t be penalized for it. There’s a long-standing precedent at NYU of issuing Pass/Fail when the professor hands off the class to other professors. In 2017, the school did it for an elective course, the school definitely did it for my 1L course, and it’s time to do it for this course.

It’s always unfortunate to remove a data point and all, but trust me that everyone turns out alright.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Thankfully, fortunately, and mercifully, the 2020 election is now over (and maybe even President Donald Trump is starting to acknowledge this). We can now start thinking about what to expect from a Biden-Harris administration.

For example, who might President Biden nominate to the U.S. Supreme Court, if he’s fortunate enough to have the opportunity? During the Democratic primaries, he publicly pledged to put a Black woman on the Supreme Court. I agree with the many legal analysts, such as Noah Feldman and Joe Patrice, who have identified Justice Leondra Kruger of the California Supreme Court and Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia as the frontrunners. They’re impeccably credentialed, highly respected, eminently confirmable, and sufficiently young (Kruger is 44, Jackson is 50).

An outside pick, as I suggested on Twitter, might be Judge Leslie Abrams Gardner, of the U.S. District Court for the Middle District of Georgia. Judge Gardner is the sister of Stacey Abrams, former Minority Leader of the Georgia House of Representatives, whose voter registration efforts played a major role in helping Biden prevail in Georgia — and the President-elect owes the Abrams family a debt of gratitude. (Stacey Abrams has also occasionally been mentioned as a possible SCOTUS justice herself — she’s a lawyer, and she and I were law school classmates, in fact — but Stacy’s interests lie elsewhere.)

Of course, whether President Biden even gets a Supreme Court nomination remains to be seen. I highly doubt that any of the Republican-appointed justices plan on retiring during the next four years. And since the oldest among them, Justice Clarence Thomas, is just 72 — a spring chicken by SCOTUS standards — I’d be surprised to see any of them leave the Court involuntarily.

We do know, however, that President Biden will get to pick an attorney general — which brings me to my topic for today. Who will serve as attorney general during the Biden-Harris administration? As I did for the most recent Supreme Court nomination, I’ll handicap the field.

One caveat: the AG pick will not be made in a vacuum. Because Democratic presidents generally care more about diversity than Republican presidents, they have a harder time putting together a Cabinet. Making sure the Cabinet is diverse in terms of race, ethnicity, gender, sexual orientation, disability status, and other considerations — possibly including party affiliation, if Biden decides to include a Republican as a gesture of goodwill — can turn into an LSAT logic game from hell. So who gets the nod as attorney general will depend not just on her own qualifications for the role, but how she fits in demographically with the rest of the Cabinet.

Doug Jones: 3-to-1 odds (25 percent)

Age: 66
Current role: U.S. Senator from Alabama (since January 3, 2018)
Education: University of Alabama (B.A.), Samford University (J.D.)
Prosecutorial experience: U.S. Attorney for the Northern District of Alabama (1997-2001); Assistant U.S. Attorney (1980-1984)

I consider Jones, who recently lost his re-election bid in super-conservative Alabama, to be the frontrunner. As a former AUSA and then U.S. Attorney, he has extensive prosecutorial experience and an impressive record as a prosecutor, winning acclaim for successfully prosecuting two members of the Ku Klux Klan for their roles in the 1963 16th Street Baptist Church bombing. He’s also a friend of the President-elect, having worked on Biden’s first presidential campaign back in 1988.

Doug Jones is not only extremely qualified, he’s also the easiest to confirm. Senators tend to be nice to their former colleagues when it comes to confirmation; recall how Hillary Clinton, one of the most controversial figures in modern politics, was confirmed as Secretary of State by a vote of 94-2. And Jones is well-liked within the chamber, not just within his own caucus but among Republicans as well (partly because of his strong record of bipartisanship in sponsoring legislation).

Jones’s main (and perhaps only) liability: he’s a straight white guy. So whether he gets the nomination will depend in significant part on whether there’s enough diversity in the rest of the Cabinet.

Sally Yates: 3-to-1 odds (25 percent)

Age: 60
Current role: Partner, King & Spalding
Education: University of Georgia (B.A., J.D.)
Prosecutorial experience: Deputy Attorney General (2015-2017); U.S. Attorney for the Northern District of Georgia (2010-2015); Assistant U.S. Attorney (1989-2004).

Like Jones, Sally Yates is amply qualified to serve as attorney general. And she actually held the role in an acting capacity for 10 days early in the Trump administration, during which she became a hero of the resistance after getting fired for refusing to defend President Trump’s so-called “Muslim ban” (i.e., his executive order barring entry to the United States by foreign nationals of seven predominantly Muslim countries).

This controversial capstone to her career in government shouldn’t overshadow the fact that Yates has more than 25 years of prosecutorial experience, dating back to her hiring as an AUSA by then-U.S. Attorney Bob Barr (yes, that Bob Barr, later a prominent Republican congressman). As an AUSA, Yates gained fame from prosecuting Eric Rudolph, the domestic terrorist responsible for the Centennial Olympic Park bombing.

Yates is definitely a top contender — as reflected in the prominent speaking role she was given in the Democratic National Convention that nominated Joe Biden. Her main liability, at least compared to Doug Jones, is that she might be a somewhat heavier lift in terms of confirmation. Even though she’s really a career prosecutor and shouldn’t be controversial, some Republican senators, especially those beholden to President Trump and his base, might oppose her because of her “insubordination” in refusing to defend the Muslim ban.

I think Yates could still win confirmation. The filibuster of executive-branch nominees is no longer a thing, at the end of the day, I think she’d win support from at least some combination of Senators Collins, Murkowski, and Romney.

Xavier Becerra: 4-to-1 odds (20 percent)

Age: 62
Current role: Attorney General of California (since January 24, 2017)
Education: Stanford University (B.A., J.D.)
Prosecutorial experience: Attorney General of California (2017-present); Deputy Attorney General, California Department of Justice (1987-1990)

Becerra doesn’t have as much prosecutorial experience as either Jones or Yates — and he has never been a federal prosecutor, just a state prosecutor — but he’s definitely in the mix. He’s popular among progressives, based on his track record not just as California AG but as a member of the U.S. House of Representatives for 24 years, and as a Mexican American, he’d add diversity to the Cabinet.

His odds as AG would be better if not for the fact that he’s also in the running for two other plum posts. First, Governor Gavin Newsom might want to appoint Becerra to the Senate seat that will be vacated by Kamala Harris in January (and Becerra previously replaced Harris as California AG). Second, Becerra could end up being nominated for Secretary of Homeland Security.

Tom Perez: 4-to-1 odds (20 percent)

Age: 59
Current role: Chair, Democratic National Committee (since February 25, 2017)
Education: Brown University (A.B.), Harvard University (J.D., M.P.P.)
Prosecutorial experience: Assistant Attorney General, Civil Rights Division (2009-2013); Deputy Assistant Attorney General, Civil Rights Division (1998); Attorney, Civil Rights Division (1989-1995)

If Perez were to become attorney general, it would be his second stint in the Cabinet, since he previously served as Secretary of Labor under President Obama (2013-2017). Perez has significant DOJ experience, having served as both AAG for the Civil Rights Division in the Obama administration and as a line attorney and later deputy assistant attorney general in the CRD in the Clinton administration. He’d also bring diversity to the Cabinet, as the son of two first-generation immigrants from the Dominican Republic.

But Perez’s current role as chair of the DNC hasn’t endeared him to Republicans. And even before this, he wasn’t the most popular on the other side of the aisle; he was confirmed as Labor Secretary without any Republican support, the first time in history that a Cabinet nominee won confirmation on a strict party-line vote. So he’s a bit of a long shot for AG (plus it’s possible he could get nominated for a return engagement as Labor Secretary instead).

The field: 10-to-1 odds (9 percent)

In craps, the field is a sucker bet — and that’s probably the case in the Biden AG sweepstakes too. The four frontrunners are so far ahead of the other contenders that two separate Cabinet speculation stories, those of the New York Times and Politico, feature the same four names.

But even if they might be long shots, some of the contenders in the field would actually be very solid picks for AG. One is Jeh Johnson, current Paul Weiss partner and former Secretary of Homeland Security (and former General Counsel of the Department of Defense; I had the pleasure of profiling him when he held that role). A second is Senator Amy Klobuchar, who served as Hennepin County Attorney before joining the U.S. Senate. A third is Judge Leslie Abrams Gardner (mentioned above), who served as an assistant U.S. attorney (2010-2014) before taking the bench.

All are qualified to serve and all would, I believe, serve admirably in the role. But there are challenges to their AG chances. Jeh Johnson is a victim of his own success: he’s in the running for Secretary of Defense (and would make history as the first Black SecDef), as well as Director of National Intelligence. Amy Klobuchar’s record as Hennepin County Attorney — during which she increased prosecutions, except against police officers accused of misconduct — garnered much criticism from civil-rights groups both during her presidential run and when she was being considered as a possible Biden VP (in the wake of the horrific killing of George Floyd in Minneapolis — part of Hennepin County, her former jurisdiction). And Judge Gardner, a relatively new judge (appointed in 2014), might not want to give up a lifetime appointment to the federal bench for an AG stint of uncertain duration.

So there’s a lot of uncertainty and fluidity in the race for attorney general. But one thing’s for sure: when it comes to possible AG picks, President-elect Biden enjoys an embarrassment of riches.

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.