Friday, February 08, 2019

Unreliable Advocate

Anti-trust crusader Matt Stoller, a critic of Barack Obama and of the Democratic establishment (but I repeat myself), is not a fan of Neal Katyal, often seen opining on MSNBC and CNN.

Stoller noted that Katyal's law firm marketing materials bragged that the latter "achieved landmark wins for Bristol-Myers Squibb limiting forum-shopping in mass torts cases, and for Wells Fargo reversing a decision allowing cities to sue under the Fair Housing Act."

So when Katyal tweeted "100 years from now, law students will read about this decision. It may be read alongside Dred Scott, Plessy v. Feguson, Korematsu, and the Chinese Exclusion Act cases," an unimpressed and skeptical Stoller responded

Katyal makes money selling corporate legal services as a rainmaker for #BigLaw firm Hogan Lovells's Supreme Court practice. He endorsed Gorsuch for the court and warmly praised Kavanaugh. I don't understand the credulity towards an obvious con artist.

A charge fairly extreme (except as applied to anyone in Donald Trump's inner circle) as "an obvious con artist," should not be taken as face value. However, in a January 2017 op-ed in The New York Times, Katyal wrote

I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far. In particular, he has written opinions vigorously defending the paramount duty of the courts to say what the law is, without deferring to the executive branch’s interpretations of federal statutes, including our immigration laws.

One down, one to go. Soon after President Trump nominated Brett Kavanaugh to replace Anthony Kennedy on the Supreme Court, we learned

Katyal, a former acting solicitor general in the Obama administration, spoke highly of Kavanaugh’s work ethic and character.

“It’s very hard for anyone who has worked with him, appeared before him, to frankly say a bad word about him,” Katyal said. “This is an incredibly brilliant, careful person, but someone who will move the court in a conservative direction.

“In my practice, we basically have a rule that if there’s a Kavanaugh clerk who applies, we hire that person. He’s legendary for his preparation,” Katyal added. “This is a guy who reads … every one of those opinions, sits down with his clerks on Fridays, and goes through them, each one, every single opinion. He is an unusual judge, so I think it will be a very interesting set of hearings.”

On Thursday, the Supreme Court granted a temporary stay to a Louisiana law that required doctors performing abortions to obtain admitting privileges at a nearby hospital. Had it gone into effect, possibly all facilities providing abortions in the state may have shut down. Chief Justice Roberts joined the four liberal judges, with justices Gorsuch and Kavanaugh- the latter writing the minority opinion- taking the forced birth position.

Katyal was wrong about Gorsuch and Kavanaugh, and that's not all. In May 2018 he claimed "The basic point is that prosecutors should not be able to tie up the work of a president," a highly arguable point. The same month, he cast further doubt on remedying criminal behavior of a president by indictment, a view he has been reticent to express on MSNBC.

Matt Stoller believes there is a Democratic "deep state," which is "not the politicians, not the consultants, but Big Law. That's where power lives." Unfortunately, referring to it as a "deep state" enhances a Republican talking point. But with the likes of Neal Katyal, an acting solicitor general in the Obama Administration, defender of global warming and friend of The Federalist Society, it's hard to argue with him.

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