Above The Law Goes To The Supreme Court

Paul Clement

Oyez, oyez! Above the Law just got cited in a Supreme Court certiorari petition — filed by none other than Paul Clement, the former U.S. Solicitor General, current Kirkland Ellis partner, and leading SCOTUS advocate.

The case is Sierra Pacific Industries, Inc. v. United States, which presents two interesting and important questions. As described in the cert petition (which is excellent, not surprisingly, and which you should read in full):

1. Whether a federal court adjudicating a motion under Federal Rule of Civil Procedure 60(d)(3) for “fraud on the court” may consider the totality of the evidence of fraud, including evidence that was known at the time of judgment, or is instead strictly limited to considering only later-discovered evidence in isolation.

2. Whether a district court judge’s impartiality might reasonably be questioned, thereby requiring recusal under 28 U.S.C. §455(a), when he not only follows the prosecution on social media, but also, just hours after denying relief to the opposing party, “tweets” a headline and link to a news article concerning the proceedings pending before him.

The first question, which might sound dry and technical, is actually an important issue in civil procedure and complex civil litigation. The Court hasn’t addressed “fraud on the court” in any detail since 1944 — which is why the lower courts are confused about it. And the issue’s incarnation in this case is particularly troubling, given that the fraud in question was committed by government prosecutors and investigators.

The second question is quite sexy — and will only grow in significance, as more judges follow the lead of Justice turned Judge Don Willett (5th Cir.) and start using social media to communicate with the public.

The second question is where Clement cites Above the Law — and all of you, ATL’s readers. As I explained in a 2015 post about Sierra Pacific, Judge William Shubb (E.D. Cal.) tweeted about the case — while presiding over it (d’oh). This should have triggered recusal, per the petition (p. 31):

There can be no serious dispute that the judge’s “impartiality might reasonably be questioned” by reasonable members of the general public. Liljeberg, 486 U.S. at 859-60. Indeed, many members of the public have, in fact, questioned Judge Shubb’s behavior. See, e.g., David Lat, A Federal Judge and his Twitter Account: A Cautionary Tale, Above the Law (Nov. 18, 2015), http://bit.ly/2CG8Hri (noting that 84% of 1,544 online poll responders considered Judge Shubb’s conduct “improper” and that “judges shouldn’t tweet about cases before them”).

If you’re a litigator hoping to improve your persuasive writing, take a few minutes out of your day to read the introduction to Paul Clement’s petition (pp. 1-4), which is simply superb. Here’s how it concludes:

This case raises questions old and new that go to the heart of the guarantee of fair prosecutions and impartial justice. The Ninth Circuit’s decision answers both questions incorrectly in ways that conflict with this Court’s precedents and undermine public confidence. Certiorari is imperative.

In light of how few cases the Supreme Court hears these days, getting SCOTUS to grant any specific cert petition is statistically a long shot. But when “Paul D. Clement” and “Ninth Circuit” appear on the cover, anything is possible.

Sierra Pacific Industries, Inc. v. United States: Petition for Writ of Certiorari [Supreme Court of the United States]
Prosecutors Burn Down the Law [Wall Street Journal]
A 65,000-acre wildfire whodunit that will make your head spin [Washington Post]

Earlier: A Federal Judge And His Twitter Account: A Cautionary Tale


DBL square headshot

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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