Government

Picking Judge Kozinski's Replacement -- The Perfect Nominee Right Under Our Noses

With yet another vacancy on the Ninth Circuit, Trump should consider this under 50 FedSoc lifer and former prosecutor.

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Alex Kozinski and David Lat

The news that Judge Kozinski has retired amid mounting sexual harassment allegations provides the Trump administration with one of the greatest gifts it could receive this holiday season: yet another vacancy on the Ninth Circuit. The circuit that’s provided the administration no end of trouble — never mind that much of that trouble has come from Republican-appointed judges — now yields a fifth opening that the Trump folks can fill with another name off the Federalist Society’s seemingly bottomless list of questionably qualified nominees under the age of 50.

But there’s actually a pretty good solution for Judge Kozinski’s seat. Has anyone considered David Lat for that job?

Let’s recap this administration’s “process” when it comes to nominations. We’ve already had the Sixth Circuit nominee whose primary legal accomplishment was penning a blog about how gays don’t have rights. We’ve had Brett Talley, the Ouija Board Wizard that the administration, mercifully, gave up on after his nomination narrative went from “embarrassingly unqualified” to “downright kooky.” Now GOP Senators are getting testy — rightly — about nominees who’ve never heard of a motion in limine.

But let’s take a second to give the administration a benefit of the doubt they probably haven’t earned — there’s a problem with résumé homogenization on the federal bench and, to some very limited extent, we should applaud their effort to look outside the box for nominees that bring different experiences to the table. Not that they want to stray too far from an elite academic background, but they don’t want to limit themselves to the traditional résumé. And while someone who never tried a case may still be a more than capable trial judge — after all many successful crime novelists have never committed even ONE murder — assuming they have legal chops and other relevant experience that can convince a reasonable person that they can learn how to manage a litigation, Judge Kozinski’s seat doesn’t require trial management, so the trial experience fetishization shouldn’t apply at all here.

As the administration begins its search for a nominee, they really need to have Lat on any shortlist they’re working on. And before anyone scoffs at the idea of a legal blogger on the bench, close your eyes and consider the nominees — successful or not — over the past few months and tell me Lat isn’t more qualified than at least 75 percent of them.

You can’t.

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Lat has played no role in this post, and frankly I have no idea if he’d even want the job, but while discussing Kozinski’s flagging career last week in a work chat, I put myself in the shoes of a White House vetter — one operating in the new world where GOP Senators are growing weary of bad picks and Doug Jones will sit in Alabama’s seat — and tried to consider potential nominees who meet all of their existing parameters except happen to be actually qualified and palatable to at least some Democrats.

What I came up with was a FedSoc lifer under the age of 50. A former Ninth Circuit clerk — who literally wrote the book on that court (affiliate link) — a former federal prosecutor, and Biglaw associate — and yet one who has put some distance between that experience and today to provide just enough “outsider” appeal. He reads about abstention doctrines for fun!

As for his blogging career, yeah there are a few saucy posts in there, but cute remarks about lawyers arrested in prostitution stings are nothing compared to the blogging about the KKK. And his blogging career is infinitely more impressive than Judge Bush’s — frankly it’s an insult to this publication that Judge Bush got a nomination before David.

To address the elephant in the room, having worked with him for years now I can safely say sexual harassment allegations aren’t going to be flagging his nomination. The only inappropriate remarks he’s ever made in the workplace involved Kathryn Rubino throwing “that’s what she said” on the end of something innocuous that he said. Plus he has that small inkling of what it’s like to be a woman in the workplace because his original blogging alias was a woman so he got to see the vitriol men are willing to lodge against a smart woman. It’s by no means perfect experience, but it’s a welcome worldview to bring in considering what’s allegedly been going on over there.

I’m also beyond confident that he has never spoken with a ghost or arguably been an unnamed co-conspirator in a federal civil rights conviction unlike some of these nominees.

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And he knows what a motion in limine is because who the f**k doesn’t?

Plus, I don’t know how much the White House cares about this, but people have been noticing that the administration can’t seem to find diversity if they tripped over a Benetton. While the numbers on U.S. Attorney nominations are way worse, as of last month, Trump’s judicial nominees were 81 percent men and a little over 7 percent people of color. It’s worth noting that Lat manages to boost that latter statistic. That’s not something to sneeze at as drawing Democratic support becomes more and more important.

This honestly makes too much sense. If anyone in the White House can hear me, this is your answer right here.

Broadening the Bench: Judicial Nominations and Professional Diversity [Alliance For Justice]

Earlier: Breaking: Judge Kozinski Is Retiring Effective Immediately
Brett Talley Being Withdrawn: Good Night Sweet Prince, And Flights Of Ghosts Sing Thee To Thy Rest!
Senator Embarrassing Judicial Nominees With Remedial Law School Questions

HeadshotJoe Patrice is an 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.

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