Biglaw Partner Calls Out Former Partner Turned Trump Appointee To The Ninth Circuit

The judicial appointment was 'a source of deep embarrassment and sadness.'

A Biglaw firm is, well, big. And that means that, as much as we like to talk about a singular culture or politics, there are actually a bunch of divergent opinions within the firm. And sometimes, those disagreements become public.

That’s what happened at Perkins Coie. An email from partner Marc Elias, chair of the firm’s Political Law Group, is making the rounds for the way it calls out a former partner of the firm, Eric Miller. Miller left the firm in 2019 to take a seat on the Ninth Circuit. But, as with many Trump judicial nominees, it was not a smooth process.

Miller made history by being the first circuit court judge confirmed without the consent of the senators from his home state, known as blue slips. This led to some frankly accurate concerns about the increasingly partisan nature of the federal judiciary. And in a recent decision, those chickens have come home to roost.

In the decision, Miller wrote for a 2-1 majority (both judges in the majority were Trump appointees) overturning the district court’s injunction which banned federal law enforcement agents in Portland from forcing journalists and legal observers off the scene of protests. Though the case is ongoing, (the lead attorney on the matter, Matthew Borden of BraunHagey & Borden LLP, which is co-counsel for the plaintiffs along with the ACLU, said, “We disagree with the court’s order, which is only temporary and not the final word. We look forward to having a chance to brief the issue on the merits,”) there were many who took issue with the decision.

Like Elias.

The case has particular meaning for Perkins Coie, as the trial judge Michael Simon is a firm alum as is the dissenting judge in the Ninth Circuit’s decision, Margaret McKeown. But, as Elias notes, there’s a particular infamy in having the firm associated with this decision. In his email he says:

[A]s lawyers, we take a unique pride in seeing our own out on the black robes of justice — where they meet the highest calling of our profession.

A decision from the 9th Circuit this week shows the best and worst of what we as a firm, have given in this regard.

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And Elias isn’t above some well placed “I told you so’s” now that such a problematic decision is out there:

Why am I sending this email — because all too often we assume that because we know someone personally or professionally that they share our values. It is too easily [sic] to celebrate our firm’s “successes” regardless of the price on society.

On the day Eric Miller was confirmed, I sent an email to management that read:

No doubt you have seen the news that Eric Miller has been confirmed to the 9th Circuit over the objection of the entire Democratic caucus and in violation of long standing rules regarding “blue slips” and home state senators (one of whom is running for president and an important client). I would asl that the firm avoid any display of support or pride in Miller’s elevation. It is, for my group at least, a source of deep embarrassment and sadness.

He is gone from the firm, or will be shortly, and we should leave it at that. I do not wish to debate him or whether he is “nice.” It is enough that his elevation is an affront to our many clients, and he will now vote as a judge against civil rights, voting rights, gay rights, women’s rights, immigrant rights and will otherwise seek to harm the most vulnerable in society. I ask that we not compound this by acting as if this is a point of pride or happiness for the firm.

My request was not granted. Miller was feted by many at the firm, including many on this email, who now stand in horror at his ruling in Portland.

I stand by those words today. Actions and inactions have consequences.

Black Lives Matter.
Marc

Now Elias’s politics are literally part of his practice, and a long line of Democratic politicos call him their attorney, so he has more freedom in voicing his opinions, as they’re shared by many of his clients. But it is still refreshing to see a Biglaw partner call out the hypocrisy of the firm. We know that a firm’s pretty words on social justice matters can often ring hollow to those who’ve actually worked at the firm. Good for Elias for pointing out the cognitive dissonance needed to celebrate Miller’s elevation, then a year later be shocked at the decision you knew — or at least should have known — he’d make.

Read Elias’s full email on the next page.


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headshotKathryn 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).