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