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3. Federal judge’s Columbia clerk boycott didn’t…

Judiciary

Federal judge’s Columbia clerk boycott didn’t harm public confidence in judiciary, judicial council rules

By Debra Cassens Weiss

April 10, 2025, 11:36 am CDT

A judge on the U.S. Court of International Trade did not violate ethics rules by refusing to hire law clerks who attended Columbia University, according to the judicial council of the 7th U.S. Circuit Court of Appeals at Chicago.

In an April 8 decision, the council dismissed the complaint against Judge Stephen A. Vaden, one of 13 federal judges who participated in the boycott and explained why in a letter to the school.

Law360, Reuters and the Volokh Conspiracy have coverage.

President Donald Trump has nominated Vaden to be the deputy secretary of the Department of Agriculture, Reuters reports. A U.S. Senate panel had a hearing on his nomination Tuesday.

The judges had refused to hire law clerks who attended Columbia University or Columbia Law School because of the university’s handling of disruptions caused by pro-Palestinian protesters. Columbia has become “an incubator of bigotry,” the judges said in their letter to Columbia, and the judges have lost confidence in the institution.

Vaden’s boycott and his signature on the letter do not harm the integrity of the judicial office, do not harm public confidence in the judiciary, and do not cast doubt on his impartiality, the judicial council said.

“A judge may refuse to hire law clerks from a law school or university that has, in the judge’s view, failed to foster important aspects of higher education, like civility in discourse, respect for freedom of speech and viewpoint nondiscrimination,” the opinion said.

The chief judge of the U.S. Court of International Trade had transferred the ethics complaint against Vaden to the 7th Circuit’s judicial council for review. The person who filed the ethics complaint is in prison for his role in firebombing and vandalizing Jewish synagogues.

Vaden was represented by the First Liberty Institute, a nonprofit conservative legal organization, and Lisa Blatt of Williams & Connolly.

Judicial councils have also tossed ethics complaints against 11 of the other 12 boycotting judges, including, apparently, two federal appeals judges: Judge James C. Ho of the 5th Circuit at New Orleans and, according to Reuters, Judge Elizabeth L. Branch of the 11th Circuit at Atlanta.

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3. Seeing double standard, 5th Circuit judge…

Judiciary

Seeing double standard, 5th Circuit judge resigns from judicial group over threats statement

By Debra Cassens Weiss

March 11, 2025, 3:32 pm CDT

A federal appeals judge has said he has resigned from the Federal Judges Association because it issued a statement against recent judicial threats but apparently said nothing in defense of conservative U.S. Supreme Court justices.

Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans announced his resignation at an event by the Federalist Society, a conservative group, on Saturday, report Bloomberg Law, Reuters and Law.com.

The March 5 statement by the Federal Judges Association said judges must be permitted to do their jobs without fear of violence or intimidation.

The Federal Judges Association statement said the group appreciates Chief Justice John Roberts and others who have “commented recently on the rise in criticism, threats and violence aimed at members of the judiciary. Irresponsible rhetoric shrouded in disinformation undermines the public’s confidence that our justice system can fulfill its constitutional duties.”

The group made the statement amid impeachment threats and criticism regarding judges who have ruled against the Trump administration.

“Did we see these statements in 2024 or 2023 or 2022? From what I can tell, no,” Ho said. “You can’t say that you’re in favor of judicial independence only when it comes to decisions that you like. That’s not protecting the judiciary. That’s politicizing the judiciary.”

Ho mentioned the 2022 arrest of a man armed with a gun and zip ties near the home of Justice Brett Kavanaugh and criticism of Justice Clarence Thomas and Justice Samuel Alito.

Ho is an appointee of President Donald Trump during his first term. He previously announced that he is boycotting the hiring of clerks from law schools that he thinks have mishandled student protests or stifled conservative views.

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3. Forget originalism; some conservatives back…

Legal Theory

Forget originalism; some conservatives back ‘common-good constitutionalism,’ its embrace of strong rule

By Debra Cassens Weiss

February 19, 2025, 11:37 am CST

Adrian Vermeule, a professor at Harvard Law School, is an “ideological lodestar” among conservatives who are impatient with originalism—the idea that the Constitution’s meaning can be determined by its text and the founders’ intent, according to a story by the New York Times.

Vermeule, dubbed “the godfather of post-originalism” by the New York Times, argued in a March 2020 essay in the Atlantic that originalism has “outlived its utility.”

Vermeule instead embraced an approach that he called “common-good constitutionalism” that goes beyond originalism in incorporating conservative values. Common-good constitutionalism is based on the idea that government helps direct society generally “toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate,” he wrote.

The main aim of common-good constitutionalism “is certainly not to maximize individual autonomy or to minimize the abuse of power,” Vermeule wrote. Instead the aim is “to ensure that the ruler has the power needed to rule well,” Vermeule wrote.

Critics on the left side and the right side of the political spectrum criticized Vermeule’s essay. On the liberal side, Garrett Epps, then a professor at the University of Baltimore School of Law, said in an April 2020 article in the Atlantic Vermeule was arguing for “authoritarian extremism.”

Some judges are also expressing interest in Vermeule’s theory, the New York Times reports. Two federal appeals judges attended a 2022 conference on common-good constitutionalism. They are Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans and Judge Paul B. Matey of the 3rd Circuit at Philadelphia.

In addition, some footnotes in federal appellate decisions have referred to Vermeule’s book on common-good constitutionalism, according to the New York Times.

Vice President JD Vance is familiar with Vermeule. Earlier this month, Vance shared a social media post on X, formerly known as Twitter, by Vermeule that read: “Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.”

The next day, Vance posted: “Judges aren’t allowed to control the executive’s legitimate power.”

According to the New York Times, Vance is hinting at “wholesale ultra vires executive-branch impunity,” an idea that “is increasingly part of the Republican mainstream.”

Vermeule didn’t think that Vance went that far when he defended his comments in a Feb. 11 article in the Wall Street Journal.

Vance appeared to be referring to legal doctrines used by courts to determine whether they have jurisdiction to review executive action, Vermeule wrote.

“Judges often invoke the separation of powers to limit their own authority, to put certain classes of executive action off-limits from judicial review, or to shape and constrain the remedies they provide,” Vermeule wrote.

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3. 5th Circuit judge’s remarks spur talk of…

Judiciary

5th Circuit judge’s remarks spur talk of Supreme Court audition

By Debra Cassens Weiss

December 19, 2024, 3:35 pm CST

Public remarks by a conservative federal appeals judge have “rekindled talk of a possible audition for the Supreme Court,” according to a story by Bloomberg Law.

Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans is already known for boycotting the hiring of clerks from law schools that he thinks have mishandled student protests or stifled conservative views.

Now, he is getting attention for comments about birthright citizenship, people who think that conservative viewpoints are “garbage,” and his appearance on a conservative podcast.

Bloomberg Law highlighted these remarks:

  • Ho appeared to embrace an argument against birthright citizenship, enshrined in the 14th Amendment, in an interview with Josh Blackman, a professor at the South Texas College of Law in Houston, published at the Volokh Conspiracy. “Birthright citizenship obviously doesn’t apply in case of war or invasion,” Ho said as he referred to a prior case in which Texas argued that illegal immigration qualifies as an invasion under the Constitution. “No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship.”

  • On a panel for the conservative Federalist Society, Ho took “a swipe at critics of the Supreme Court,” according to Bloomberg Law. “Too many academics regard the views of half the country as garbage,” Ho said. He also may have been referencing a comment by President Joe Biden, who appeared to call supporters of President-elect Donald Trump “garbage.”

  • In an interview with the conservative Advisory Opinions podcast, Ho said he agreed to appear to counter negative remarks by some judges. He appeared to be referring to criticism by Judge Amul Thapar of the 6th Circuit at Cincinnati, who said he doesn’t think that law grads should be boycotted in clerk hiring to punish their schools.

At least one person doesn’t think that Ho’s remarks are intended to increase his chances for a Supreme Court nomination.

Brad Hubbard, a partner at Gibson, Dunn & Crutcher and one of Ho’s former law clerks, told Bloomberg Law that Dallas-based Ho “loves his family and loathes D.C.”

Ho’s wife is a Gibson Dunn partner who has argued before the Supreme Court, which could lead to conflicts issues if Ho becomes a justice.

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3. Is racism against whites ‘edgy and exciting’?…

Education Law

Is racism against whites ‘edgy and exciting’? Potential SCOTUS pick pens dissent supporting bullied student

By Debra Cassens Weiss

November 18, 2024, 3:22 pm CST

A Texas high school student who said he was bullied and harassed for being a white Trump supporter won’t be able to pursue his lawsuit under Title VI of the Civil Rights Act as a result of an evenly divided decision by a federal appeals court.

The split Nov. 13 decision of the 5th U.S. Circuit Court of Appeals at New Orleans had the effect of upholding a federal judge’s decision to dismiss the suit, report Bloomberg Law, Reuters and Law360. The plaintiff was a minor referred to as “B.W.”

The 5th Circuit’s decision noted the split, with nine judges on each side of the issue. Four justices explained why they thought that B.W. could not pursue his claim under Title VI, which bans discrimination on the basis of race, color or national origin by recipients of federal funds.

Nine others judges explained why they disagreed, and two of those judges declared in a separate dissent that “our culture today increasingly accepts (if not celebrates) racism against whites.”

The author of the two-judge dissent was Judge James C. Ho, who was joined by Judge Stuart Kyle Duncan. Both have been mentioned as potential U.S. Supreme Court nominees if President-elect Donald Trump gets a chance to appoint a justice during his administration.

“It’s racist to characterize whites as racist,” Ho wrote. “Because it’s racist to attach any negative trait to a group of people based on their race. And it’s no less racist just because the victimized racial group is white.”

B.W. had alleged that he was “mocked, physically beaten and verbally abused” while a middle school and high school student at the Austin Independent School District in Texas, according to the nine-judge dissent written by Judge Jennifer Walker Elrod.

One student said he was going to “beat the s- – – out of” B.W. because he was white and then did so, B.W. alleged. A teaching aide referred to B.W. as “Whitey” and belittled him for struggling with lessons, asking, “Can’t figure this one out, Whitey” A teacher allegedly mocked B.W. for listening to “white gospel music,” another expressed concern about the number of white people, and a third objected to a white man talking about gender issues. One student made a meme of B.W. dressed as a Ku Klux Klansman.

The four-judge concurrence, written by Judge Priscilla Richman, said it is “sickening and reprehensible” that a student would have to be subjected to the treatment that B.W. alleged.

But the suit makes clear that B.W. was bullied and harassed because of his political beliefs and the contrary beliefs held by classmates, the concurrence said. Any bullying based on race was not so severe and pervasive that it deprived him of educational opportunities, Richman said.

Elrod’s dissent said the suit should survive because the allegations “plausibly amount to severe, pervasive and objectively offensive racial harassment.”

Ho’s dissent noted that the Supreme Court recently granted cert in Ames v. Ohio Department of Youth Services to decide whether courts may require members of majority groups suing under Title VII of the Civil Rights Act to present special evidence of “background circumstances” to support their claims.

The plaintiff in the Supreme Court case, Mariam Ames, is a straight white woman who alleges that she was demoted from an administrator position that was then filled by a gay man, according to previous coverage by Law.com. She had unsuccessfully sought a promotion for a job later filled by a gay woman.

Federal appeals courts are split on whether majority group members must make a special showing in discrimination cases, Ho wrote in his dissent in the B.W. case.

There should be no dispute that white people are entitled to the same legal protections as any other racial group, Ho said.

Ho said law professors teach that angry white people are fearful of racial diversity, and white evangelicals are waging war on democracy. University students are told that talking to white people can “suck you dry.”

“So it’s not surprising that more institutions increasingly believe that they have cultural permission to tolerate (if not encourage) racism against whites, under the guise of promoting diversity,” Ho wrote. “Racism is now edgy and exciting—so long as it’s against whites.”

Martin Cirkiel, a lawyer for the student, told Reuters that he will ask the Supreme Court to hear the case, B.W. v. Austin Independent School District.

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3. Who may be on Trump’s Supreme Court short…

U.S. Supreme Court

Who may be on Trump’s Supreme Court short list? Senate win aids judicial picks

By Debra Cassens Weiss

November 6, 2024, 3:12 pm CST

President-elect Donald Trump could get a chance to appoint two U.S. Supreme Court justices if Justice Clarence Thomas, 76, and Justice Samuel Alito, 74, decide to retire.

“With two more appointees,” Law360 reports, “Trump could single-handedly cement the Supreme Court’s conservative supermajority for decades to come.”

These judges and lawyers are potential nominees, according to Law360, an op-ed in the New York Times by the editor of a liberal blog, Fox News and a Bloomberg Law story on potential Asian American and Pacific Islander picks.

  • Judge Stuart Kyle Duncan, the 5th U.S. Circuit Court of Appeals in New Orleans. He is the former general counsel for the Becket Fund for Religious Liberty. He was in the news in January 2020 for an opinion in which he refused to refer to a transgender inmate by her preferred female pronouns. (Law360, Fox News, the New York Times)

  • Judge Andrew S. Oldham, the 5th Circuit at New Orleans. He is former general counsel for Republican Texas Gov. Greg Abbot. (Law360, Fox News)

  • Judge James C. Ho, the 5th Circuit at New Orleans. He is a former Texas solicitor general. In 2022, he said he won’t be hiring future Yale Law School grads as clerks because the university cancels conservative views. (Law360, Fox News, the New York Times, Bloomberg Law)

  • Judge Amul Thapar, the 6th Circuit at Cincinnati. He is a former Williams & Connolly lawyer. He has suggested that conservatives withhold donations to law schools that don’t teach originalism. (Law360, Fox News, Bloomberg Law)

  • Judge Joan Larsen, the 6th Circuit at Cincinnati. She was formerly a Michigan Supreme Court justice. (Fox News)

  • Judge Gregory G. Katsas, the U.S. Court of Appeals for the District of Columbia Circuit. He is a former Jones Day lawyer and a former deputy counsel in the Trump White House. (Law360, Fox News)

  • Judge Neomi Rao, the D.C. Circuit. She was the administrator for the Office of Information and Regulatory Affairs in the Trump administration. (Fox News, Bloomberg Law)

  • Judge Lawrence VanDyke, the 9th Circuit at San Francisco. He is a former Gibson, Dunn & Crutcher lawyer and a former solicitor general in Nevada and Montana. He received a “not qualified” rating by the ABA Standing Committee on the Federal Judiciary, which cited an “entitlement temperament.” (Law360, Fox News, the New York Times)

  • Judge Patrick Bumatay, the 9th Circuit at San Francisco. He was the first openly gay judge to serve on the 9th Circuit. (Bloomberg Law)

  • Judge Kenneth Lee, the 9th Circuit at San Francisco. He wrote an opinion finding that a ban on gun advertising that appeals to minors was likely unconstitutional. (Bloomberg Law)

  • Judge Barbara Lagoa, the 11th Circuit at Atlanta. She is a former Florida Supreme Court justice and former Greenberg Traurig lawyer. (Fox News)

  • Judge Britt Grant, the 11th Circuit at Atlanta. She is a former Georgia Supreme Court justice. (Fox News)

  • Judge Kevin Newsom, the 11th Circuit at Atlanta. He was formerly the Alabama solicitor general. (Fox News)

  • Judge Michael Park, the 2nd Circuit at New York. He formerly was a lawyer at Wilmer Cutler Pickering Hale and Dorr; Dechert; and Consovoy McCarthy Park. (Bloomberg Law)

  • Judge David Stras, the 8th Circuit St. Louis. He is a former Minnesota Supreme Court justice. (Fox News)

  • Judge Allison Jones Rushing, the 4th Circuit at Richmond, Virginia. She was a Williams & Connolly lawyer. (Fox News)

  • Kate Comerford Todd, a former deputy counsel in the Trump White House. (Fox News)

  • U.S. District Judge Aileen M. Cannon, the Southern District of Florida. She dismissed the classified documents case against Trump. (Law360)

  • U.S. District Judge Patrick Wyrick, the Western District of Oklahoma. He was formerly an Oklahoma Supreme Court justice. (Fox News)

  • Kristen Waggoner, CEO and general counsel at Alliance Defending Freedom. (Law360, Fox News, the New York Times)

  • Republican U.S. Sen. Tom Cotton of Arkansas. (Fox News)

  • Republican Sen. Mike Lee of Utah. (Fox News)

  • Morse Tan, the former dean of the Liberty University School of Law, who is now the senior executive director of Liberty University’s Center for Law & Government. (Bloomberg Law, the New York Times)

  • Former North Carolina Supreme Court Chief Justice Mark Martin, founding dean of High Point University’s law school. (The New York Times)

Confirmation of Trump’s judicial nominees will be easier when Republicans take control of the U.S. Senate, Law360 reports.

Republican Sen. Charles Grassley of Iowa intends to reclaim his position as chair of the Senate Judiciary Committee that will consider Trump’s choices, a Grassley spokesperson told Law360.

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3. Judge with ‘highly antagonistic demeanor’…

Judiciary

Judge with ‘highly antagonistic demeanor’ must be removed from foster care case, 5th Circuit says

By Debra Cassens Weiss

October 15, 2024, 8:37 am CDT

A federal appeals court has removed a federal judge from foster care litigation against the state of Texas, citing her “highly antagonistic demeanor” against the defendants during a December 2023 contempt hearing.

Senior U.S. District Judge Janis Graham Jack of the Southern District of Texas was ordered removed in an Oct. 11 opinion by the 5th U.S. Circuit Court of Appeals at New Orleans, report Bloomberg Law, the Texas Tribune and Texas Public Radio.

Jack has become “too personally involved in the proceedings,” the appeals court said.

The 5th Circuit also reversed fines of $100,000 per day that Jack had imposed April 15, 2024, for the state’s alleged failure to implement two remedial orders.

The orders required investigation of allegations of child abuse and neglect in a timely manner for children placed in “permanent managing conservatorship,” which happens when the state cannot find adoptive homes or cannot reunify the children with parents within specified time limits.

The appeals court had stayed the daily fines. Had they been implemented, Texas “would be on the hook for $7.2 million” between the April order and a June compliance hearing, the appeals court said in a footnote.

The 5th Circuit saw the state’s compliance differently than Jack, saying Texas officials have made “significant remedial efforts” in the past several years. The state has already spent $150 million trying to comply with Jack’s remedial decrees and another $60 million on monitors.

As evidence of its compliance, the state said it was hiring more staff members, training them better and implementing policies to hold providers accountable for poor care.

Jack first ruled in 2015 for the plaintiffs, who had challenged the constitutionality of Texas’ foster care system. She awarded “expansive” injunctive relief, the appeals court said.

The 5th Circuit invalidated many aspects of the initial injunction in 2018 and did so in two more opinions after Jack made changes on remand. In its last decision, the 5th Circuit ordered Jack to implement the injunction without further changes, apart from the ones ordered by the 5th Circuit.

Jack has not yet “officially modified” the injunction, the 5th Circuit said. And even though the appeals court “firmly ordered” Jack not to modify the decree, she “imposed extraneous orders” on the state to provide information on COVID-19 vaccine refusals, to expand mental health care and to produce documents not related to the remedial orders, the appeals court said.

“Not only has the district court clearly indicated an intent to continue oversight well into the future,” the 5th Circuit said, “this contempt order seems a harbinger of even more drastic district court micromanagement.”

Jack has “indicated the strong possibility” that she will issue further contempt orders or even place the foster care system in receivership, according to the appeals court.

“As a general rule of law federal judges are not allowed to become permanent de facto superintendents of major state agencies,” the 5th Circuit said. “Nor, under the federalist structure created by the Constitution, is it appropriate for federal court intervention to thwart the state’s self-management, where the state is taking strides to eliminate the abuses that led to the original decree.”

The 5th Circuit said the December hearing happened after Jack “urged and instigated” the plaintiffs for several months to seek contempt. During the hearing, Jack “repeatedly questioned the defendants’ unwillingness to exceed the requirements of the remedial decree,” suggesting that she had “substantial difficulty” moving past previously invalidated remedial orders, the appeals courts said.

“It doesn’t hurt to go over and above” the remedial orders, Jack said during the hearing.

At another point, Jack interrupted a witness to complain that “the state contracts with these people that are not doing their job, and they still keep contracting with them.”

When the witness asked Jack to clarify her question, she replied, “I don’t know if there’s a question. It was more of an irritable rant.”

During testimony by another witness, Jack said, “I don’t know how the state sleeps at night with this. I really don’t.”

Jack’s statements at the contempt hearing and at other times show that she “exhibits a sustained pattern, over the course of months and numerous hearings, of disrespect for the defendants and their counsel but no such attitude toward the plaintiffs’ counsel,” the 5th Circuit said. “The judge’s demeanor exhibits a ‘high degree of antagonism,’ calling into doubt at least ‘the appearance of fairness’ for the state defendants.”

Graham was appointed by former President Bill Clinton. The author of the 5th Circuit panel decision, Judge Edith H. Jones, is an appointee of former President Ronald Reagan.

In a statement published by the Texas Tribune, the state’s heath commission and social services agency said they are pleased that the 5th Circuit recognized their significant efforts.

“We remain committed and are grateful to Gov. Greg Abbott and the Texas legislature for their continued support in furthering the well-being of our most vulnerable Texans,” the statement said.

Paul Yetter, a lawyer with Yetter Coleman, one of the attorneys for foster care children, said in a statement the decision was “a sad day for Texas children,” Bloomberg Law reports.

“For over a decade, Judge Jack pushed the state to fix its broken system,” Yetter said. “She deserves a medal for what she’s done. We will keep fighting to ensure these children are safe.”

The case is M.D. v. Abbott.

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3. Conservative faction pushes judge nominees…

Judiciary

Conservative faction pushes judge nominees who are ‘even more bold and more conservative’

By Debra Cassens Weiss

October 15, 2024, 10:02 am CDT

Former President Donald Trump has broken with leaders of the conservative Federalist Society, who failed to voice their support when he tried to overturn the 2020 election and when prosecutors charged him with crimes.

Instead, the Wall Street Journal reports, Trump “has gravitated to more-combative lawyers outside the conservative legal establishment who have said they want to hobble regulatory agencies and concentrate power in the White House.”

These lawyers are part of a rising conservative faction that includes America First Legal, a conservative legal group founded by nonlawyer and former Trump adviser Stephen Miller to combat “the left’s radical and lawless agenda.”

One Republican legal activist pushing for pro-Trump judicial nominees is Mike Davis, according to the Wall Street Journal. Future nominees must be “even more bold and more conservative and more fearless” than those appointed in Trump’s first term, Davis said.

Davis likes judges following the model of conservatives on the 5th U.S. Circuit Court of Appeals at New Orleans. The Wall Street Journal described the appeals court as “a hothouse of conservative jurisprudence under the influence of some of the brashest and most aggressive first-term Trump appointees.”

The up-and-coming conservative faction wants to see Trump appoint more judges like U.S. District Judge Aileen Cannon of the Southern District of Florida, who dismissed the classified documents case against Trump, according to the article. She was mentioned as one of the “up-and-comers to watch” by former White House counsel Donald McGahn during a September conference.

Hat tip to the Volokh Conspiracy.

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3. 2 federal judges who boycotted Columbia law…

Judiciary

2 federal judges who boycotted Columbia law grads didn’t commit misconduct, review panel says

By Debra Cassens Weiss

September 17, 2024, 10:10 am CDT

Two federal judges who said they wouldn’t hire future law grads from Columbia University did not commit misconduct, according to a review panel of the 11th U.S. Circuit Court of Appeals at Atlanta’s judicial council.

The review panel appeared to be referring to U.S. Circuit Judge Elizabeth Branch and U.S. District Judge Tilman E. Self III of the Middle District of Georgia, the only judges who signed a letter announcing the boycott within the 11th Circuit.

Law360, Reuters and Bloomberg Law covered the Aug. 12 order released last week.

Branch and Self were among 13 federal judges who signed the letter pledging not to hire future Columbia grads for clerkships because of the school’s handling of campus disruptions. All 13 judges were appointees of former President Donald Trump.

The judges’ May 2024 letter deemed Columbia to be “an incubator of bigotry” and said the university should embrace viewpoint diversity and impose serious consequences for students and faculty who participate in campus disruptions and violate university rules.

The no-misconduct finding follows an August 2024 decision drawing the same conclusion by a review panel of the 5th Circuit at New Orleans’ judicial council. The 5th Circuit review panel found no ethics violations by eight federal judges within the 5th Circuit, including, apparently, Circuit Judge James C. Ho.

The 11th Circuit review panel affirmed a decision by the 11th Circuit Chief Judge William H. Pryor Jr. The order included Pryor’s June 2024 decision dismissing the complaint.

There is no basis for a finding of misconduct, Pryor had said.

“Federal judges routinely hire law clerks and must consider applicants’ educational backgrounds in determining whether an applicant is qualified for and will succeed in the job. As part of that consideration, judges are permitted to make reasonable conclusions regarding the value and quality of a school’s educational program,” he wrote.

A person who filed a complaint against the judges with the 11th Circuit said there is every reason to think that judges who are willing to punish a university and its graduates “will skew their judicial rulings in a similar manner.”

“It is no stretch of the imagination,” the complainant wrote, to conceive that the judges will “attempt to discern the political views of the parties and counsel before them and discriminate and retaliate against them.”

The complainant also called for an investigation into whether “outside organizations or foreign governments” orchestrated the judges’ letter.

Pryor responded that that the complainant’s claims lack sufficient evidence, including insufficient evidence to show that the judges “treated or will treat individuals in a demonstrably egregious and hostile manner.”

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3. Pro se litigant and lawyer ordered to pay…

Law Firms

Pro se litigant and lawyer ordered to pay $1.5M for using Lewis Brisbois name

By Debra Cassens Weiss

September 17, 2024, 3:05 pm CDT

Updated: A federal judge in Houston has ordered a lawyer and a pro se litigant in a rental-fee and eviction dispute to pay $1.5 million for registering a Texas business using the name of Lewis Brisbois Bisgaard & Smith, the law firm representing their litigation opponent in the rental litigation.

U.S. District Judge Keith P. Ellison of the Southern District of Texas ordered pro se litigant Michael Bitgood to pay $1 million and lawyer Susan C. Norman, who represented a second litigant in the rental dispute, to pay $500,000, Law360 reports. Another lawyer, Bradley B. Beers, was ordered to pay $10,000 for filing an assumed name certificate that registered the new entity with the Texas secretary of state’s office.

Bitgood and Norman filed documents to register a partnership and assume the Lewis Brisbois name after they saw an online notice reflecting that the firm’s registration for a foreign limited liability partnership in Texas had lapsed. After taking on the Lewis Brisbois name, Bitgood and Norman alleged that the Lewis Brisbois lawyer representing their opponent in the rental litigation no longer had the right to appear in a Texas court. The gambit worked.

Lewis Brisbois sued in September 2022 for alleged trademark infringement, unfair competition and fraud. Ellison issued a preliminary injunction in February 2023 that was upheld in an unpublished July 31 opinion by the 5th U.S. Circuit Court of Appeals at New Orleans.

Ellison granted a motion for summary judgment Aug. 14, a permanent injunction Sept. 6 and assessed damages Sept. 13.

Ellison’s summary judgment opinion found for Lewis Brisbois on the trademark infringement and unfair competition claims. He also said Lewis Brisbois was entitled to attorney fees, which are allowed in Lanham Act trademark cases that are “exceptional.”

“If any Lanham Act case is exceptional, it is this one,” Ellison wrote. “Defendants have filed dozens of frivolous motions and delayed the proceedings for months.”

In a footnote, Ellison said the filing of frivolous motions was “most egregious” in Bitgood’s case because he had filed 65 motions and documents after being granted access to the PACER filing system.

“This court has had complex, multiyear class actions require far fewer filings than this straightforward infringement case,” Ellison wrote.

Norman and Beers did not immediately respond to the ABA Journal’s email and voicemail messages seeking comment.

Bitgood told the Journal in an email that, “No, I do not have $1 million laying around” to pay the judgment. He elaborated in a phone interview.

“Not only is it unfair, it’s outrageous,” Bitgood says of the damages order. Lewis Brisbois “didn’t suffer a penny’s worth of damages; they incurred no attorneys fees,” he says.

Bitgood says he sought to use the Lewis Brisbois name “for the heck of it,” but his quest turned out to be successful because he “whipped” Lewis Brisbois when he disqualified the firm in the rental dispute.

“I beat them fair and square in state court,” he says.

Bitgood says he told Ellison in an Oct. 6, 2022, hearing, which was less than a month into the trademark lawsuit, that he had no interest in fighting the trademark case and didn’t want to use the Lewis Brisbois name.

“Who wants a name like that with their reputation anyway?” Bitgood says.

Additional demands, however, for a reversal of the rental decision and indemnity led Bitgood, in his words, to tell Lewis Brisbois to, “Blow it out your a- -; there is no way I’m going to do all that.”

As for Ellison’s allegations that Bitgood filed frivolous motions, Bitgood says the judge should specify which motions he thought were frivolous and what law supported his conclusion. And he should have a hearing to refute the allegations, Bitgood says.

Because he indicated early on that he was willing to give up the name, Bitgood says, “What are we fighting about?”

Updated Sept. 17 at 3:37 p.m. to add comments from pro se litigant Michael Bitgood.