Advisory Opinions - Judge Cannon's Clerkship Problem

Episode Date: March 26, 2024

In this double-guest special, David Lat shares his original reporting on the exodus of Judge Aileen Cannon’s clerks and its implications for Trump's classified documents case. Judge David Proctor of the Northern District of Alabama then joins to explain the history and function of the federal judiciary and its committees, including the Judicial Conference. The Agenda: —Do younger clerks just not understand hard work? —Judge Cannon’s declining reputation —Delays in Trump’s documents case —How the federal judiciary came to be —Rule-making process for the Federal Rules of Civil Procedure —Multi-district litigation and its criticisms Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And this is going to be a fun podcast. We have David Latt joining us from the Bahamas, and he's going to talk about his latest reporting on Judge Eileen Cannon, who's overseeing the Trump classified documents case and some interesting drama in chambers with the clerks. And then we'll talk to Judge David Proctor down in Alabama, federal district judge, about all those judicial conference things. How does an idea become a rule of civil procedure?

And a little more on multi-district litigation as well. So, David, for the next episode, we have some fun Supreme Court stuff to talk about. We have Gonzales v. Trevino on the evidence you need to show retaliatory arrest. We have Gonzales v. Trevino on the evidence you need to show retaliatory arrest. We will also have the abortion drug Mifeprestone oral argument to talk about. And I was on Bill Maher's show with Kara Swisher, where we didn't really get to get into my thoughts on antitrust being made up. Instead, I just sort of blurted out, antitrust law is made up. And I think that confused a lot

of Bill Maher listeners. So maybe worth a short revisit here. It definitely confused Kara Swisher. So that was it was a really fun show, though, David, I was on with Beto O'Rourke from Texas. So Texas, we had two Texans on the show. And Bill seemed pretty confused about having two Texans on a show, honestly. Well, I think you're underestimating our audience reach, Sarah, because I would say there's probably only a very small percentage of Bill Maher viewers who are not AO listeners. So we'll clear it up for the small percentage of Bill Maher listener viewers who are not AO listeners on antitrust law being made up. And then there's one other topic that we'll have for the next episode. And that is who gets to go into the media? And does it matter what your previous job was? If you have something interesting to say, of course, I'm thinking of former RNC

chair Ronna McDaniel being hired by NBC News causing quite a kerfuffle. And lo and behold, David, my name seems to be coming up quite a bit in this conversation based on being hired by CNN. And then, well, things changed after I got hired by CNN. So I think we'll save all of those Supreme Court, and I trust, and a little meta-media talk for the next episode because we need to save plenty of time to talk to David Latt and Judge Proctor.

So let's start with David Latt from Original Jurisdiction. Hello there, David Latt. Thank you for joining us. Hello, Sarah. Hello, David. Great to be here. You're joining us all the way from Spring Break, somewhere amazing. Yes.

Greetings from the Bahamas. Oh, nice. So, David, before we start, can I just tell you how you're so good at what you do that intimidates the rest of us? Because I was texting with Sarah about this clerk story when the first news came of the two clerks quitting. And I asked if Sarah knew who they were. And I started to think, I bet I can find out who they were or who they are if just given a little

bit of time. And then the next thought I had was David's going to have this whole thing in moments. Why am I even thinking to try? And literally, as that thought was going through my mind, thinking to try. And literally, as that thought was going through my mind, your your big, your second email came in where you where you talk to them. And you had the story. And I thought, yeah, I'm glad I'm glad I didn't even lift up the phone. That's how good you are at your job, David. You're just even preventing me from making a call. All right, David, why don't you introduce this story for us? This started with a rumor that Judge Eileen Cannon, who was overseeing the Trump classified document federal special counsel case in Florida, was down a clerk or two, which would be really unusual. So walk us through how you researched all this and what you found. through how you researched all this and what you found. Yes.

So as you mentioned, Sarah, this originally started with a rumor. And I am extremely, extremely grateful to the source who provided me with that rumor because as I later found out, it was actually fairly well known within the Southern District of Florida where Judge Cannon sits. But it was one of those open secrets. Tons of people knew that she was down or that she had lost, I should say, two clerks, but nobody was really talking about it to the media. So I did some digging and I reached out to various sources and I was able to confirm the fact that she had lost two clerks, two clerks who left before the scheduled end of the clerkship. And a clerkship

usually is of fixed duration, one to two years. But I just had that. I just had that fact. And my sources were understandably circumspect. There's a lot of secrecy that surrounds clerkships and judicial chambers, and they didn't want to be blabbing. I also think that some of them didn't know the full story because Judge Cannon is the only Article 3 judge in her courthouse in Fort Pierce. And what I have also learned from sources is she and her clerks are kind of reclusive right now. They're not exactly hobnobbing and going to all the clerk happy hours. Understandably so. They're working on a super secret, super important case.

And so I just had this bare fact. And sometimes you just kind of need to roll with what you know and then see what it digs up. So I published a story basically saying Judge Cannon, who's overseeing the Trump documents case, has lost two clerks. Please, if you know more, give me some information. And at that point, I got a flood of information from people who knew. And as David mentioned, the following day, I published a deep dive into that story. All right.

So again, like it is, clerks don't quit. That is like a- Let's establish that as the baseline here. Yes. I mean, it doesn't matter how miserable the clerkship is. And we've heard about some miserable clerkships. Clerks don't quit. So how did these two end up quitting when it's really when you think about it to get to work on this specific

case would be sort of the opportunity of a lifetime for a clerk. And I would think, you know, sort of devil wears Prada style, a million girls would kill for this job. So why did these clerks quit? So footnote on that, I agree with the conventional wisdom that, as Professor Eric Siegel put it, clerks don't quit. But I've actually gotten in the past few days a lot of pushback on that from folks who claim that clerks quitting is more frequent and more common than we suspect. And I'm actually going to be publishing from here in the Bahamas a post on that subject. But it is certainly true that it is not the norm. It is not expected that clerks don't quit. And even the people who say it's more common than it is acknowledge that it's still unusual. So I did some digging into this. And here's what basically happened. In her early years as a judge, Judge

Cannon's clerks really, really enjoyed working with her. I actually heard from around three, a couple of them, shall I say, who had very favorable experiences. And I actually quoted from them. But one source did tell me that, look, she's not for everyone. And the way this person put it is, if you are trying to get by with a minimal amount of work, or you get easily stressed, then you will find her demanding and domineering. But if you are someone who's been through adversity, who can tough things out, then you will find she's the kind of boss who, while demanding, gets your best work out of you. So that gets into this issue we'll talk about later about just generational approaches to work and work style. But armed with that knowledge, I did some digging. And after the initial report

came out, it's sort of like the wall of silence breaks. Nobody wants to be the but-for cause of some secret being out there. But once it's out, everyone is happy to correct things, amplify things, clarify things. And so what I found out was after Judge Cannon's first decision in the Trump civil case, Trump the United States, where she appointed a special master, which was a kind of loopy decision. You guys talked about it extensively here on AO. She got reversed unceremoniously by the 11th Circuit by a panel that included three conservative

judges. And her reputation took a hit then. Her reputation as a good judge really declined after that. And so one incoming clerk from a top three school basically withdrew from the clerkship. I don't know what this person said. I understand from multiple sources it was because of Judge Cannon's declining reputation. And the reputational value of a clerkship is tied to the reputation of the judge. So a clerkship with a less well-regarded judge is not as valuable as a clerkship with a well-regarded judge.

So this person withdrew. So Judge Cannon was down a clerk for the 2023-2024 judicial year. She asked one of her existing clerks, whom I'm going to call Carrie, to stay for an extra year to extend her one-year clerkship to a two-year clerkship. Carrie agreed. Then Judge Cannon, you know, then things started to heat up in chambers. Judge Cannon got the Trump documents case, United States v. Trump. Jack Smith's criminal prosecution of the former president for mishandling classified documents. Things in chambers started to get tense. The workload grew.

This is a monster of a case. Her clerks had to get security clearances. One of the security clearances for one of her clerks was delayed. The other two clerks, including Carrie, had to do much more work as a result. When Carrie agreed to extend, she agreed to extend but agreed on the condition that she would work normal 40-hour-a-week kind of hours because she knew at the start of her second year as the clerk, she would be the mother of a new child.

She did not want to be working these super long hours. Judge Cannon agreed. But once the Trump criminal case came in, everyone, including Carrie, was working very long hours. So in October of this year, Carrie basically said, I'm out of here. I did not get what I bargained for, the 40 hours a week. I'm sorry, I'm out. Then things kind of got even worse, and conditions grew more and more intense in chambers, more and more unpleasant. And then there's a clerk I'll call Mary.

Mary came to chambers in August, and she wasn't really that happy to be there because she accepted before the 11th Circuit reversal of Trump. So between when she accepted and when she arrived in chambers, she felt that the credential value of her clerkship had declined. So she was already grumpy. in chambers, she felt that the credential value of her clerkship had declined. So she was already grumpy. She then had to endure a few days of unpaid training where clerks outgoing and incoming overlap, and there's only a budget line for one of them. So the incoming clerk is generally unpaid. This is actually not unique to Judge Cannon. I understand that it's actually common in many

judicial districts, and there may be a separate issue there about whether the judiciary should get more funding to allow for both clerks to be paid. But anyway, regardless of whether this is common or not, Mary didn't like it. So she started off her clerkship on the wrong foot. And then things got worse and worse. And Mary described Judge Cannon as quote-unquote mean to her friends.

And Mary was working 80 to 100-hour weeks, according to Mary. And she didn't like it. So what she did was she reached out to a law firm where she had summered. She reached out to a well-known appeals court judge for whom she has a future clerkship scheduled. She basically cleared with them that they would be okay with it if she quit on Judge Cannon, because as you mentioned, quitting a clerkship is uncommon and therefore it's not good for the resume. As you mentioned, quitting a clerkship is uncommon, and therefore it's not good for the resume. They apparently gave her their blessing.

And then in December, she too quit. And so that's the story of how two clerks quit from Judge Cannon's chambers. And I would say that the but-for cause was the Trump classified documents case. What's interesting to me about all of this is that it's having real world impact potentially. There are huge delays seemingly in this Trump documents case. And look, one of the delays, maybe Judge Cannon herself, maybe she's indecisive, maybe she's allowing things to slip. Certainly, you don't quote unquote need clerks to get your work done. And it should be nevertheless a priority to stay on top of especially a case like this and on timing, regardless of whether you're down clerks. And the second part that it could have real world effects on is, for instance,

we saw this sort of bizarre jury instruction request, a choose your own adventure jury instructions. It's a weird order. It's all the weirder because of the other orders that we don't have yet. It sort of it seems out of order. It itself is a strange order. It comes off publicly, like someone who doesn't really know how to run a complex trial and who is getting buried by the workload. Certainly being down to clerks could have that effect. But it gets to this question that I think is a little bit unanswerable, even with the best reporting, David, which is, you know, chicken egg. Is this the clerks who just can't handle work and are going to not be able to survive well in the legal field?

Or especially if you can't handle like like, if you don't want this workload on one of the most important cases that will be on any docket. Right. Historic case. And you're not, right? It's a historic case and that's not jazzing you up to work 80 to 100 hours a week, then let me tell you what's definitely not going to jazz you up to bill 3,000 hours a year. Anything else you're going to work on, literally anything. Yeah, like some securities arbitration is not gonna be a bigger deal than this case. I mean, I'm so glad you brought that up, Sarah,

because there are two aspects of it. One was this 80 to 100 hours. I was thinking, what kind of profession? Now, do you think you're entering? Not from the standpoint of all lawyers do that. But if you're somebody who is a prestige focused, you know, you're calling your your circuit court clerkships, is everything okay? You're a career person, man, you're a career, you have a you're a career, you have both eyes on your career. And what do you think that career is like?

And then the other thing- It's also worth mentioning that, for instance, the Kaczynski clerkship, which Latt and I are both very familiar with. So that was mandatory in-office hours of 104 hours a week. That's astonishing. That's astonishing. And my memory, and this is only memory, David,

is that out of that 30 years or so, one clerk quit and it wasn't due to the hours. Wow. Wow. And then the other thing about the unpaid preview is really fascinating to me. And I just have to say, I come at this from being a former officer in the United States Army Reserve, where unpaid work is the norm. It is absolutely, you know, when you have this specific time when you're, you know, you have your duty on the weekend, or you're called up for active duty or whatever. But there's just this enormous amount of work you do off the clock, which is weird, and it's bad. And the federal, you should not be donating time to the federal government. But this sort of idea that you would have, it's just way beyond the pale

to spend a day or two before you start work. It's not right. It's not fair, but it doesn't strike me as like the biggest deal in the world. I also don't get it, David Latt, because you're getting paid a salary regardless of how many hours you work. This isn't an hourly job. But the salary hadn't started yet. So what? It's three days. Like you were going to make up those three days hours in the first week if you're working 100 hours a week. You see what I mean? Yes. Like three days with a salary job doesn't really actually matter. You're getting paid the same amount, no matter how many hours you work. And frankly, no matter how many days you work, because you're going to be working

Saturdays and Sundays or not, like those three days, we're going to come or go sort of regardless. It's an odd thing. You know, I can't imagine a whole lot of clerks would be like, Oh, my God, Chief Justice Roberts made me work for three days without salary. But this gets the second question, David. Is that the real reason? Is this a generational problem? Does this clerk, maybe it's not generational, this clerk lack work ethic? Or is it that toxic in chambers?

So let me add a couple of addenda to what we've been discussing. First of all, I should point out that Judge Cannon did get replacements for the outgoing clerks. So I don't think she was down a clerk necessarily for any extended period of time. But as I point out in my coverage, it is very disruptive to the work of chambers to have these clerks going in and out. Every time a clerk leaves, a new one has to come in. They have to get up to speed with a job. They have to get up to speed with the substance of the cases. So I do think that this turnover in chambers has contributed to the delays in this historic case, which may or may not go to trial before the election, depending in part on the work habits of a bunch of 20-something-year-olds. So I do think that that is significant. Now, it's not just the long hours. I will quote from some of my reporting. Some of this is based on a report

on a message board called Top Law Schools, but I did verify a lot of these comments. The allegation is that Judge Cannon treats clerks poorly, tends to get angry to the point of screaming to them and talking to them in condescending ways. She micromanages according to this. She sets arbitrary rules about when clerks can work on what things. She frequently requires clerks to come in on weekends and holidays. She often does this at the last minute. So according to this posting, if you have a plane ticket for a weekend trip, you're out of luck. You have to cancel it. Tough luck. So that's what people say beyond the hours, that Judge Cannon is an unreasonable and unpleasant boss. But now let me tee up this work issue, because I got a comment from a managing partner who read

my coverage, and here's what this person said. I'm, again, going to summarize and truncate. I have no reason to doubt your excellent reporting about the Cannon clerks or the challenges in chambers. I do want to consider a possible additional spin, not based on any specific facts, but my own experience as a managing partner dealing with elite young lawyers. This is what this person quoting. This new generation of lawyers is annoying. They don't want to work very hard. They question everything. They expect everything to be perfect and on their terms, and they have unrealistic expectations about how life and work and the real world operate. When I read your reporting, I could not help but think of some of the young lawyers I have interacted with.

And it makes me sympathize a bit with Judge Cannon and not believe everything I have read. I have no doubt you are accurately reporting what you were told. I have no doubt that they quit. I do doubt that things were as bad as reported.

I have no evidence other than my general observations about this generation. Okay, get off my lawn. Well, we just had an extended period. Sarah, you and I were both taking get off my lawn turns there for a minute. Yeah. But okay, so there's a few things about this, though. One, first of all, I find the idea that you were booking plane tickets during your clerkship for the weekends to be

insane, actually? Like, what? Why would you ever think that you could do that for any year long job? Like where it's only a year? You don't like there's no vacation time. What? Now, mind you, I've only like, through my operative career, my like campaign operative political stuff career, I never had a job for longer than two years. So again, I'm not like the best person on work life balance. But this gets to my second point, which is you do also then wonder, you start with a big pool of people at the bottom of the legal field, right? And me, this managing partner, we never really interacted with everyone in that big pool. Because we, we now know we're going to be heading to the top of that pool, like, when everyone else was going to get sloughed off, because they didn't like the work hours. And they

didn't like not being able to travel on weekends, they weren't going to stick with this. But me and managing partner, we were just climbing that ladder to the top, man. And so yes, like we were always working those crazy hours, we weren't booking plane tickets. But maybe it's not generational. Maybe our colleagues were, they just didn't climb the ladder, so to speak. So it's not generational so much as it's selection bias, that the people who are now the managing partners at firms or, you know, ran presidential campaigns were always putting in the hours. And yes, not all of these kids are putting in the hours, but some of them are, and they're going to be the future managing partners. I'm so glad you said that, Sarah, because that thought came to my mind because everything that

managing partner just wrote was being written about Gen X lawyers coming into the field. And yet a lot of these Gen X lawyers are now the managing partners who are saying this exactly about Gen Z. And I think the dynamic is exactly as you outlined it. These are the folks who did that work. One thing I will point out, there definitely is a lot of opinion and a lot of, in my day, we walked uphill in snow to school both ways. You know, one thing I will point out that's an objective fact in favor or in defense of the young lawyers today is, at least in the world of law firms, aka big law, which I also cover extensively besides the federal judiciary, it is an objective fact that billable hour requirements have increased over the long term,

over the past few decades. That is just a fact, whether they've gone from 7,1550 to 1,800 to 2,000. So it is definitely an objective fact that the requirements have gone up along with the salaries. It doesn't speak to the judiciary. It doesn't speak to what people were actually working above the requirement. I know some lawyers in the 90s and early 2000s

who were working crazy hours even if the requirement was lower, but requirements and expectations in some sense have been going up. Hmm. Interesting. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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$30 off plus free shipping on their best-selling frame. That's A-U-R-A Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Well, can we flip it around to talk about the judge for a minute? Because I think the really interesting element of your reporting, because if you listen to, or if you watch social media, all of the questioning regarding Eileen Cannon and some of her rulings and the way she's handling the case are all along the lines of, is the fix in? Is she MAGA sympathetic? Is she Trump sympathetic? And your reporting raised another possibility entirely, which is also a possibility we don't explore enough when we see people struggling in high profile controversies and high profile issues, is

that she just might be totally overwhelmed, that she might be crumbling under this pressure. And that to me, in an interesting way, was even more sobering than a notion of that she has bias. Because the bias, you know, bias is a manageable issue in some ways. The crumbling has unexpected, could have unexpected outcomes. That was fascinating to me. Yeah. And I will say a couple of things on that. First, I just want to be clear because I've gotten all kinds of pushback from people on this.

I do believe that Judge Cannon is biased in favor of Trump. I just want to put that on the record. I said it in my post, but sometimes people send me comments or emails as if I didn't say that. I do believe she unduly favors Trump and she gives too much time of day to some arguments that an experienced judge would have laughed out of court. I do think that her personal problems and her resource issues are contributing to the problems.

But let me add a third factor, which I think this is a confluence of factors. It's not just because of the personal problems. A third factor is I don't think her experience matched well for this job. She was appointed before she was age 40. She had had only four jury trials as an AUSA, as an assistant U.S. attorney. Why? She focused mainly on appellate work. She was representing the United States before appeals courts. She was in the trenches doing trials. I actually know a little bit about this because my last job before entering journalism was I worked as an appellate AUSA. And let me tell you, appellate work and trial work are very different. You learn about

some stuff in trials as an appellate at USA because you're reading the trial record to defend what happened as kosher, but it's not the same as being on your feet day in and day out before a judge, before a jury, creating the record, not just reading it, but creating it in real time. Being a trial lawyer and a trial judge, those are way harder jobs. And I like to think I was a good appellate AUSA, but I would have been a terrible trial judge, not because I'm stupid or lazy, but I didn't have the right experience. Similarly, Judge Cannon, she was an AUSA for seven years. A trial AUSA gets two or three trials a year, even in an age of diminishing trials, she should have had 15 to 20 trials before she joined the bench.

She had four, and none of them lasted more than a week or so. And then in her first few years as a judge, she presided over roughly four trials, none of which went longer than five days. Now she's managing a trial that's expected to go longer than five weeks. So one, I think she was inexperienced. And two, I think she brought an appellate lawyer's temperament or disposition to these cases. Let me kind of give a little cultural thing about appellate versus trial lawyers. Appellate lawyers, we love intellectual issues. We're nerds. Many of them are AO listeners. You love talking about these abstract issues. Trial lawyers are about

facts, not law. They're in the trenches. They're like really kind of just, you know, it's a different kind of job. And also there's such a massive caseload that as a trial lawyer and a trial judge, you just need to make decisions, make them quickly and move on. Appellate lawyers don't even have deadlines for when they hand in opinions or appellate judges. They can kind of sit there and wonder

how many angels can dance on the needle in the head of a pin or whatever. You can't do that as a trial judge. So I think some of Judge Cannon's weird decisions, like her opinion in the Trump civil case, and then her weird order from last week, I think she's kind of seeing all these intellectual issues. And like Judge Bork, who called being on the Supreme Court an intellectual feast, she's kind of treating this like she's at the Mirage buffet in Vegas. She's like, oh, these are such interesting issues. But it's like, no, no, no, no, no.

This is a frivolous argument. You should have just rejected it and moved on. And instead, you're kind of puzzling about all these really interesting issues and coming up with innovative approaches. No innovation, just decide. So, okay, but you think that she's still biased against Trump because I feel like I can read those facts

and one version of the facts is that she's biased, sorry, in favor of Trump. Did I say against? Whatever, you know what I meant. And I think that's a totally plausible reading of all the facts we have to date. But to me, an equally plausible reading is what you just made,

which is that a combination of she sees all these interesting issues where there actually aren't any, because she doesn't actually have the experience to know the difference between interesting issues and frivolous issues. And second, after the special master decision was, as you put it, unceremoniously, unanimously overturned by three well-respected conservative appellate judges, she's terrified of getting overturned. So now she's not making any decisions if she can avoid making them at all for fear of getting overturned.

And she's coming up with sort of interesting angel dancing ideas when it comes to, for instance, the jury instructions, which we all know are make or break for most trials. And so that's why she didn't give, hey, give me your jury instructions. She was like, give me different versions of some different jury instructions

based on different decisions I might make about what the law is that I haven't made yet. So again, one version is she's biased in favor of Trump, but another is this is like, you know, prevent defense. She doesn't want to get overturned. She's totally overwhelmed. She doesn't know the difference between frivolous and interesting.

And we're just seeing this like slow descent into madness. So I will, in defense of the bias point, because a lot of my conservative readers have scolded me for saying, how can you say she's biased? Just as my liberal readers have scolded me for saying, how can you say she's not just MAGA in the tank for Trump? If you look at her special master ruling, and then you compare it to the two 11th Circuit

rulings we got on it, she was so far off the mark that, and she's undoubtedly an intelligent person. I push back on the people who say, oh, she's just dumb. Like, look, again, I don't want to be too credentialist, but she went to Duke. She went to Michigan. She did very well at both institutions. She got work at Gibson Dunn, a very hard to get into prestigious firm. She was an assistant US attorney. That's a hard job to get. She is not dumb. You might say she's biased. You might say she is too academic for this job. She's not stupid. Let's just get that out of the way. So why do I think she's biased? She was so far off the map in the special master case, and she got reversed, as you pointed out, by three conservative judges, including

Chief Judge Pryor, Bill Pryor, a Trump shortlister, and judges Grant and Brasher. I believe Judge Brasher was a former guest on AO. These are not progressive judges. And she got so badly reversed by them, you have to think she was trying to get to that outcome of ruling in favor of appointing a special master. And then also, if you read a couple of her other rulings, some of which are discussed in the comments to my posts on original jurisdiction, sometimes she kind of goes off on these scoldings of the special counsel, where again, you kind of think she kind of has a thumb on the scale for Trump a little, at least a little bit.

Yeah, I don't, I am very open to that possibility. And I agree, I think the available evidence is in your favor, David, on saying that there's bias. And it really, even more than the jury instructions and some of the things where you see people reading tea leaves, where this is so weird and confusing, it has to be a product of bias. In part.

In part. In part. I think your reporting raised this other prospect that could be in the mix. And I think it likely is in the mix as well. But I'm with you on the special master ruling. That was so beyond the norm. It was so highly unusual and highly irregular that it's really hard to have seen, you know, look, you could have that appellate mindset that aids you in your bias because you can say, oh, I'll, I can pick out something here. I can, I can find something here that's interesting. That's an angel

on the head of the pen, but I don't really have a credible idea that it's going to survive review. It's just something. But I thought your reporting is really valuable because people also do need to see it is a real thing in the world that people crumble under pressure. That is a thing that happens in the world. And often we ascribe malice to what is sometimes a collapse. You know, sometimes it's a failure and malice and failure are not the same things. She has the judicial yips. That's a good, more succinct way of putting it. David, back to the clerk issue. I'm wondering, I guess, what we think about judges who are hard on their clerks. And let's put it on a spectrum, right? There's maybe too easy on your clerks. And then there's hard on your clerks. And then there's abusive to your clerks. And I just

want to be clear at the outset, neither of the Davids nor I are condoning the abusive to your clerks. So we're let's take that off of our spectrum. We're talking about, you know, buddy judge to, you know, the hundred hour work weeks, constant redlining, micromanaging, you know, normal, but hard things on your clerks and in that spectrum. You know, to bring up Kaczynski again with the 104 hour work week, that made him a prestigious judge to work for. He was incredibly hard on his clerks. It was known to be a miserable year clerking for him. And it credentialed you. You were considered Supreme Court material, Bristow material, top law firm material now he was a circuit judge this is a district judge but there's also another difference between the two of them he's a man she's a woman and i'm

curious if we judge men who are quote-unquote hard as being prestigious and teaching and mentoring in their own gruff way and And when women do it, they're bitches. So I have a couple of thoughts on that. You know, I have a few, a few thoughts on that. One, I should mention that I, as you mentioned, none of us condones abuse. And I will give a shout out here to Eliza Schatzman and the Legal Accountability Project. I interviewed Eliza for my podcast. She is trying to provide support and resources to clerks with bad experiences. And she wants everyone to have a positive clerkship experience because she did not.

So first, just right off the bat, no abuse. Nobody is supporting that. But on the gender or the sexism point, that's a very interesting one. Jesse Panuccio, who is a well-regarded Florida lawyer who's been mentioned on this podcast before. Now, full disclosure, he's known Judge Cannon for 20 years. I think they are friends going back to Duke. So he's not some kind of objective observer. But he has made the point, including in comments to the New York Times, that he thinks Judge Cannon is being judged more harshly because of her gender. I do think there is some truth to that. I do think that

there is a gendered component to some of the criticism. But on the other hand, as you mentioned about Judge Kaczynski and Judge Reinhart, who also on the opposite side of the ideological spectrum also had very long hours, and both of them later stood accused of various forms of sexual harassment, which of course is unacceptable. People also would say that Judge Kaczynski and Judge Reinhart were a-holes or a word for the female, sorry, a word for the male anatomy that begins with a P or a D. Like no one was saying that they were great either. So it's just, you know, so I think there's some truth to the sexist point. But I should also say that people would say, oh, that male judge, he's such an a-hole or such a tool. And I'm not talking about what you find in your toolbox. So, you know, I wouldn't

give her a free pass because she's a woman. I find this whole thing pretty interesting, because I'm imagining myself like having an AO listener email us and say, Hey, my judge is a real D should I quit my clerkship? And what advice we would give them, David? Yeah, no, my advice would be no. Yeah. Yeah. I mean, yeah. Yeah. I think my advice would be no too, because then like, okay, fine. Your summer law firm said that they take you until your appellate clerkship starts. First of all, it's in their interest, especially the law firm's interest to do so, right? You're grist for the mill at the law firm. So they're like, sure, by all means. They're not necessarily guaranteeing you a position afterwards. And even if they were like, they're not guaranteeing you a rise through the ranks,

so to speak. Most law firms are pretty up and out at this point. And you are adding a ding against you on your resume. And this is going to be like a two dings and you're done situation in your career. So why take the ding now instead of just doing the rest of your time on a really interesting case that you'll be able to talk about for the rest of your career. It has to be like staplers being thrown at the head level. Like to use Amy Klobuchar as an example, this is the like she throws staplers and she uses a you know, and they didn't bring her a fork for her salad. She used a comb to eat her salad and then berated them that she didn't have a fork. First of all, very relatable. I have eaten salads without forks before and you do the best you can, folks. You like stick your face in it if need be. I wish I'd had a comb. No, I didn't yell at any

staff for not doing that. Although I will say in one of my worst moments ever, and there's lots of excuses I could give. But at the end of the day, you know, you're the you're the person who did the bad thing. I did have a staffer one time on a campaign, I had wanted the broccoli cheddar soup from Panera. And they brought me the tomato soup from Panera and claimed to forget that I wanted the broccoli cheddar soup from Panera. And I forget that I wanted the broccoli cheddar soup from Panera. And I accused them of doing it on purpose. I just want to note, if you go back to all my staff, I don't think that like, I think you'll get pretty good reports overall. This was like the worst moment for me as a boss ever. I was, you know, and it was a presidential campaign. So can I give my reason for why you would stay?

And again, let's just reemphasize, if you believe that this is anywhere within the shouting distance of actual abuse, if you're talking about someone even within shouting distance of actual harassment, this does not apply. We're talking garden variety assholery. This is what we're dealing with. And one thing that I would say about that is when you're younger, your perspective of

the value and of how long a year is, is different from when you're later in your career, your view of how long a year is. And so when you're- Sorry, I'm laughing as someone with a six month old baby and David also has a new baby. How long six months feels? When you have a three year old and you're like, hey, let's have another baby. That six months wasn't so, it went by so fast. I mean, yeah, it was really bad, but it was so fast.

And then when you're in the six months and you're like, why did I think that went by so fast? Yeah. Oh yeah. I was just gonna say, yeah, that's exactly right. And if you are hearing from somebody who's 55, as one of us is on this podcast, saying to a 25 year old, this year will be worth it. It will be worth it. That's a hard thing to hear because it just feels like such a grind, such a grind. But at the end of the day, odds are, odds are,

it's, you know, the odds are it's going to be worth it. It is going to be better for you to have stuck it out than to have, you know, than to have popped smoke, as we said in the military, and leave. And so stick it out, again, but not if you have whiffs of real darkness. One thing I will say is the incentive goes both ways because judges are also very loathe to fire clerks because they do not want to get a reputation as a firer. And again, it's only a year. So if a judge has a so-called dud of a clerk, they can just funnel all the work to the quote unquote good clerk.

So I have heard reports of, say, a circuit judge who has two good clerks and two bad clerks. And for that year, after the judge figured out who was good and who was bad, the good clerks worked on the published precedential important opinions, and the bad clerks worked on all the unpublished decisions. So judges don't want to fire clerks. It gets them a bad reputation. And guess what? If they have a bad reputation, they can't get the best clerks because nobody wants to work for a judge who might possibly fire them. One shameless plug. If you love stuff about drama within a judicial chambers, check out my novel, Supreme Ambitions. I have actually described it as

the devil wears Prada meets the federal judiciary. It's about a young woman from Yale Law School whose dream is to clerk on the Supreme Court. And like Anne Hathaway's character, was it Anne Hathaway in the movie? Yes. Or Lauren Weisberg. She goes to work for a powerful female judge

on the Ninth Circuit whose dream is to sit on the Supreme Court. So two intensely ambitious women and the tension between the two of them as they both try to realize their respective goals. So there is such a thing as the devil wears Prada meets the federal judiciary. That is so true about judges and their reputations.

I will also say though, I think a lot of judges are hesitant to fire the weak link clerk because they feel a responsibility. You hired them. You had a responsibility during the interview process to figure out whether they were up to the work. It turns out they didn't. That's on you. And especially if you can't train them, that's on you. I always like to tell anyone who's managing someone who's then complaining to me about their staff. Well, you hired them and you're responsible for managing them. So why are we blaming that person instead of you? Because somewhere along the line, you failed this person. And I think that's very true. And even, you know, in the federal government, for instance, when I went in, I inherited half my staff, and I still took that mantra seriously. And I didn't even get to hire them, which is it's up to you to train. It's up to you to find the incentives that will motivate that person. And yeah, if it turns out you have a weak link clerk, you figure out a way to make that work, make them a little bit better than they were when they started, get the harder stuff to

the other clerks, but you don't fire a clerk for not being as good as you thought they were because you're the one who picked them in the first place and as i said being fired from a clerkship is like that you know okay you have one ding on your resume one more and like you're done it's like red flag and everyone's looking to see whether you're going to screw up again. So not great. I think in this case, the not great is spread out across everyone involved in a way that's just bad for everyone. And especially, I will just say, I think bad for the institution of the judiciary. We have one of the most watched cases in so long.

I mean, this is like OJ levels of magnification. And unfortunately, it seems like it's in a chambers and with a judge who is not the best foot forward for the federal judiciary. And that's a real shame because this podcast thinks that the institution of the federal judiciary is great and important and worth building up. The institution of the federal judiciary is great and important and worth building up. And I wish that there were going to be a way to change that perception in people's minds moving forward. But delays, reverse decisions, stories of chambers drama, regardless of whose fault it is. Again, like you hired the person who then turned out to have this.

So like it does all come back to the judge for me. I wonder, I think that the jury instructions order, it's sort of like the same thing as my one ding. The special master reversal is the first ding. The jury instructions is a second ding that I think would really concern some of the circuit judges who are watching this. Yeah.

And it is near impossible to remove a judge from a case and you don't remove judges for being bad judges. Right. However, all of these judges are very cognizant of the credibility of the judiciary that's on the line right now. And I do wonder whether we might in the future enter into a world where that's a conversation we're having. I wonder about that as well, Sarah. And I think the damage that could be done here, I'm glad you described it like this, because as you if you're listening, listen to AO, you have heard us say a million times, hey, guys, if you're if you are left of center listener of this podcast, you need to know how much FedSoc judges, the very people that you have been sort of like trained since birth in progressive America to loathe, to hate, how FedSoc judges really protected the rule of law and have been protecting the rule of law in this era, in this very toxic political era, including delivering really decisive rulings against people from their quote unquote ideological tribe or side. And we've been sharing that gospel, so to speak, for years now. And then in the case that's going

to have more attention than any other trial since OJ, the person that is sort of an avatar for the conservative legal movement is not apparently not up for this on a bias standpoint and a competence standpoint. And that is a, I'm with Sarah, that's a real problem. And then let me add one addendum to what I just said earlier about, you know, enduring through assholery. There's a difference between a defined job term and an indefinite job term. So a clerkship is a year. Okay, you're gone after that year. If you're joining a firm, and you're just surrounded by a tsunami of mistreatment, and it's an indefinite, you know, you're staring an indefinite term of employment there. and it's an indefinite, you know, you're staring an indefinite term of employment there.

Well, you might need to make some choices sooner rather than later about, you know, removing yourself from that position. But a clerkship is a defined period of time. This is not asking people to endure something for an indefinite period. All right, David, last word to you, the reporting, the credibility of the judiciary, what this looks like moving forward. you, the reporting, the credibility of the judiciary, what this looks like moving forward? So I agree with you, Sarah. The standard for removing a judge is high. I could argue that there are more than just the two strikes against Judge Cannon. Remember that before she was reversed on the special master thing, she was reversed in an earlier ruling by a different 11th Circuit panel. And then also, she now has this other motion, which I think is still pending as of this recording, where she kind of had agreed to publicly docket or release information about witnesses. And Jack

Smith filed a motion saying, whoa, whoa, whoa, this is really bad. Please reconsider. And the motion for reconsideration is pending. But a lot of people say that if she denies it, he may seek an appeal there. And at a certain point, I wonder, he does not want to request removal or removal of Judge Cannon, because as you mentioned, that's a rare thing.

But at a certain point, Jack Smith may just decide, we just have no choice. We just kind of have to bite the bullet here. But I would argue that, you know, maybe she is on on Finnish ice again. And I agree with you. It's so hard to remove a judge and it's so rare to even request it. But this is this case is not going well. And by the way, removing a judge who's viewed as being biased in favor of

Trump will also carry with it certain credibility harms for the institution as well. Yeah. You know, it would go back into a random assignment panel, etc. It's not like we then get to pick a different Trump appointee to show that actually yada yada. And especially when people have felt like other judges are really biased against trump they didn't get removed so now the one time there's a judge in bias in favor of him like oh no she's gotta go like this is this is just bad and i don't see a clear way out or a good choice for poor uh judge prior the chief judge of the 11th circuit um And yeah, you know, Donald Trump, once again, has the best enemies, whether it's Fannie Willis, Alvin Bragg, or here now in the classified documents case.

Yeah, it's good to be Donald Trump, I guess. It is remarkable, Sarah, when you think about different jurisdictions. So he gets a case in Florida with a judge who is probably biased towards him and apparently crumbling under pressure. He's got the Georgia criminal case where the prosecutor has, I guess it's safe to say, an ill-advised affair in the middle of it. And then- The clown herself. With, and what was it?

A whiff of mendacity is around her- Odor. Conduct. Odor. Odor of mendacity is around her. Odor. Conduct. Odor. Odor of mendacity is around her conduct. And then you have Alvin Bragg and the Southern District of New York, the DOJ-led Southern District of New York

being slow in providing discovery information, which necessitates a delay in a trial where the trial judge obviously does not want to delay. It's remarkable. It's just remarkable. Oh, and don't forget DC where we now have the motion, sorry, the argument pending at the US Supreme Court on immunity. So yeah, that's four for four. Four for four, Donald Trump. Congratulations. David Latt, I cannot believe you were so generous with your time while you're looking out at the beautiful Bahamas Vista. Please enjoy. I also can't believe that you took a baby to the Bahamas. I hope you're getting like the problem for me of traveling with these

two now is that you may go somewhere amazing, but you're up all night with the baby and then you just sleep during the day in a beautiful place, which sort of defeats the purpose. So I hope you're not, I mean, better to nap in a beautiful hammock on the beach than to nap here where it's 39 degrees, but still. Well, thank you so much for having me. I would, I would join you from anywhere in the world with an internet connection. Thank you, David. Thank you. Thank you, David. Thank you. All right, David, final thoughts, feelings? Yeah, I really enjoyed diving into the employment part of the and employment conditions part of the clerkship discussion. Because I remember as I first read David's reporting, my initial instinct was to say, wow, Judge Cannon has a real problem managing clerks.

And it took me about a half a beat to say, OK, wait a minute, let me drill down into these allegations against her. And really, how extraordinary are they? And how difficult is this? And so I'm glad we got to flesh that out a little bit. is this? And so I'm glad we got to flesh that out a little bit. Yeah. And I'll just reemphasize my point that I think judges have a responsibility when interviewing clerks and then for training clerks that they don't get to fire clerks, except if the clerk somehow misled them during that interview process. They feel like something has changed from the interview to currently.

And clerks shouldn't quit on their judges. A lot of other people interviewed for that job. And if it's hard, if the hours are bad, if you had to cancel your flight over the weekend to your vacation spot, I'm sorry. That's what a one to two year, as you said, David, a fixed term job. That's what that looks like. And yes, you are there to assist the judge. You're not there to have your own opinions heard and valued, to be blunt about it.

So I don't know. Feels like enough blame to go around in this one. Yeah, yeah. I think that's a I think that's the right conclusion to land at. All right. Now let's talk to Judge Proctor. Judge Proctor, thank you so much for joining us. What a treat to have you here today.

Well, it is a treat. Thank you for having me. And. What a treat to have you here today. Well, it is a treat. Thank you for having me. And we wanted to talk to you. It's funny because we actually, you and I talked about talking quite a while ago now before all of this judicial conference-y stuff was in the news, because I thought it would be fun to have someone come on to explain the bureaucracy of the federal judiciary and how what these committees are, how you get on these committees, what they do. And here you are, a subcommittee chair, I believe. Yes, I chair the MDL Rules Subcommittee. And also I'm on the Civil Rules Committee,

the subcommittees of obviously a subcommittee of the Civil Rules Committee. So we have to go back quite a while in history to appreciate kind of where we are with the Judicial Conference and other committees. So the first 120 years or so of the federal judiciary, I don't think many people cared much about administration of courts. And this is kind of nerd out time, but in 1906, Roscoe Pound signaled the need for better federal court management. And former President Taft, who'd been defeated by Wilson, as I recall, and returned to Yale Law School to teach, as I recall, and returned to Yale Law School to teach, was starting to lobby for Congress to get involved in establishing administration of the courts through some organizations. So in 1922, Congress established the Conference of Senior Circuit

Judges, which was the forerunner to the Judicial Conference. But in 1939, Congress established the Administrative Office of the Courts. Previously, this is interesting, that this might be up your alley, Sarah, the federal court's budget was administered by the Justice Department, which obviously created some conflicts of interest. Quite. So in 1939, Congress establishes the administrative office of the courts, kind of the business function, business end of the federal judiciary. And finally, in 1948, they changed the name of the Judicial Conference of Senior Circuit Judges to the Judicial Conference of the United States. It was made up of all the chiefs of the various circuits plus the Chief Justice. And then in 1957, they had district judges. So before we started recording,

Judge Kugler stepped on and said, hello to y'all. He's our district judge representative to the judicial conference, and he actually serves on the seven-member executive conference, which is the – they're the folks who deal with a lot of the executive issues for the judicial conference. So basically the conference is made up of chiefs from each circuit, an elected representative district judge from each circuit, and the chief justice and the chief judge of the U.S. International Court of Trade. Okay. And so how does one get on these? The way you get on the judicial conference is to be the chief judge of your circuit, if you're a circuit judge. on the judicial conference is to be the chief judge of your circuit, if you're a circuit judge. The way you get on the judicial conference as a district judge is you are elected by your circuit to represent the circuit on the judicial conference. Now, the chief justice also appoints a number of committees. But there's a lot of y'all out there. Does the chief justice know all of you? Like, do you need to be friends with the chief? Or someone's, you know, whispering in his ear, hey, that Judge Proctor dude, he's pretty cool.

Well, I have no doubt someone did that. You know, the chief's very good at administering the courts. We know this. So he's got his system in place. I do think he counts on advisors. I do think he counts on advisors. So can we back up just a bit and sort of level set on the idea of who governs whom in the federal judicial system? So, you know, you have a district court judge has rules for his or her own chambers, or

if you're practicing in front of the district court judge, they're going to have their own rules often. You're going to have district-wide rules sometimes. You'll have specific circuit rules. But if, suppose, for example, you know, just to take examples from current issues, there was a decision, if there was going to be an effort to reform, say, judicial assignment processes in a district, who governs that? Who would make that happen? In the district, it would be the district judges on that court who would establish either through an order, like a standing order, for example, or a local rule,

local rule, how their assignment process works. And I think all 94 districts have various forms of random assignment systems for their assignment of their cases. I think what the judicial conference policy was getting at, and again, that's a policy, not a rule. So there was a lot of misreporting about that early on, that this was a new rule passed by the judicial conference. They just handed out a policy. And I think y'all got into this on a previous podcast about single-judge divisions, where only one judge draws that division. We don't have any of those in the northern district of Alabama. I want to say that every one of our divisions has at least three judges drawing from it. So we've always been sensitive to the fact that we don't want to have a one judge division. further and suggests that in a certain category of cases, nationwide injunctions or injunctions

against state government, statewide injunctions, that those cases be assigned from a random deck of all the judges eligible to draw from the court. So that's the issue that each, I think each circuit and in turn each district is going to have to address, and that each, I think each circuit and in turn, each district is going to have to address. And that is, should we change our system to the extent we already have that to have a single deck from which we draw with all the judges participating in that deck for that limited category of cases? You know, we had pushback letter from John Cornyn signed by all of the Republican members of the Senate Judiciary Committee, basically saying this was Chuck Schumer's idea and that this was unilateral disarmament because it's only conservative

judges that have these one judge divisions. But using the Northern District of California as an example, you know, they're still, quote quote unquote forum shopping all the time in terms of what district you're going to, you know, during the Trump administration where everything got filed in the Northern District of California. And this rule won't do anything to prevent that. Is there a concern of getting dragged in to these sort of political fights? Or do you think that the judiciary and the conferences and all these committees, you know, have been able to steer clear of those? Yeah, the good news for me as a district judge is that I'm down here kind of on the ground floor just trying to manage cases, get issues decided correctly in cases. And I think the average district judge just doesn't get involved in worrying about things like that. Now, having said that, I do have some views that it is unseemly for the courts on both sides of the aisle to have people coming in and selecting a place to litigate based upon what they expect the outcome would be in terms of who the draw is.

And, you know, I think I heard Judge Chabria addressing this. I think he's right that this is particularly pronounced in a single judge division. But I think it's also a problem when you have nationwide litigation injunction practice being done in ways that the public kind of loses confidence that that was the right outcome. So I think there's various proposals. I do think that it would make sense to have a uniform way that we handle these across the country. I'm not about to start suggesting what that uniform way should be. But what I would like is that, and I think the judicial conference was wise to kind of step into this on the things that were clearly before it that they could address. I know the two representatives from our circuit, Chief Judge Pryor and Judge Kugler, I'm virtually certain that there's no senator who's going to tell them how they ought to approach this problem.

Right. So, Judge, you remember the old schoolhouse rock cartoons? Did you see those when you were younger? Vaguely, yes. I'm just a bill. And it's like how a bill becomes the law. Right. So, you know, when you're in high school civics, hopefully you learn how a bill becomes a law. You come out of Congress and president signs a review, vetoes it. There's a veto override. And you have this very A, B, C and D. This is how a bill becomes a law? What is the, how a proposal becomes a rule in the federal rules of civil procedure? How, what is that process? All right. So the, the, much of the work for the rules committees works through subcommittees. And at any given time, there's a number of subcommittees that are working on rules proposals. So anyone

can suggest a rule proposal. Anyone can suggest we need a rule that says this. And the Civil Rules Committee meets twice a year, and the Civil Rules Committee will decide if something rises to the level of consideration that it ought to go to a subcommittee for review. So, for example, in 2018, Rule 23 was amended quite significantly, added four or five key things into the rule. That was the product of a subcommittee on Rule 23 that worked diligently for years on that. So that's the first thing I'd say to you is anyone can suggest a rule, and the Advisory Civil Rules Committee, for example, if it's a civil rule, would take up whether that's something we need to look further at, examine, and assign to a subcommittee. And then the chair of the rules committee can appoint a subcommittee to consider that.

Now, if you are in a hurry to get your rule proposal through, then this process is not for you. Because it has to run a gauntlet. It has to go through the subcommittee. It's got, and again, the subcommittee is made up of practicing lawyers on both sides of the V, judges from different parts of the country, and law professors who serve as the reporters, as we discussed. So it goes through a lot of work.

The NBL Rules Subcommittee traveled around the reporters, as we discussed. So it goes through a lot of work. The MDL Rules Subcommittee traveled around the country, and I became the chair three years ago, two and a half years ago, but a lot of the work was already done. The Rules Committee was kind of involved in this, the subcommittee was involved, and they were really working to subcommittee was involved, and they were really working to examine whether we needed a rule, and if so, what the rule should be. So what's interesting to me is this opportunity to present proposals. So if you're a litigating attorney, and you are consistently finding an element of the federal rules of civil procedure to be unfair, gumming up the works in some way, you've got a better, you can go ahead and make that kind

of proposal. But there's no compulsion that any given proposal needs to be taken up. Then, in other words, proposals come in, is there, does a proposal that if it comes into a subcommittee, you're going to look at it? Or is there pre-screening? In other words, how could someone flood you with proposals? Well, it happens all the time. Lawyers and judges and law professors. Right. And actually non-lawyers from time to time. So, you know, if you think about it, it's not unlike Congress. You know, you talk about the schoolhouse rock. A lot of people have ideas about what legislation Congress

ought to take up. Right. But it has to kind of work through a system to decide which ideas merit attention and which don't. And, you know, it's it's like anything else. You can have a proposal that sits dormant for a while until all of a sudden we realize, no, this is actually something we need to look at. A lot of times decisions that interpret the rule differently could lead to the need for a clarification of the rule. for a clarification of the rule. So, you know, for example, let's take, if we could, let's take the MDL rules subcommittee as our prototype here. The first question was, do we need rules? And there's an interesting history there involving a judge who used to sit in the very desk I'm sitting at now, Chief Judge Sam Poynter of the Northern District of Alabama. After the MDL statute passed in 1968, there was this period of its infancy where everyone was trying to figure out how does this get implemented? And there were advocates saying, we need to have rules for the MDL rules statute. We need a set of rules.

Poynter advocated that we didn't need rules, that we ought to have practices that kind of define MDL as it works through. And he persuaded Chief Justice Warren Burger that that was the correct view. Justice Warren Burger, that that was the correct view. So over time, there were not really a set of substantive rules that enacted the statute. When class actions kind of died down, more MDL filings picked up. Although it's a myth to say that the MDL statute has metastasized, that is something that the founders didn't intend it to be. If you go look at, there's an article that Judge Chabria mentioned on your podcast before, Andrew Brock, who's one of our reporters, wrote just a fascinating piece on the fact that the MDL statute was a radical proposal.

on the fact that the MDL statute was a radical proposal. And it was always intended to fundamentally shift the landscape of federal litigation, because there were four people who were the founders of this, three judges and a professor. And they looked down the portal of time and saw this mass litigation wave bearing down on the courts and realized we are not equipped to do that. One of the things that educated him about that was a bunch of antitrust litigation in federal courts that followed confessions in the electrical equipment industry of price fixing. So that spawned a ton of cases across the country, and it quite frankly ground the federal judiciaries handling a case system to a halt almost. And they appointed this committee, the Coordinating Committee on Multi-Litigation. Judge Becker from the Western District of Missouri chaired that committee.

And he, along with Judge Murrah of the Tenth Circuit, who was the chief judge at the time, and another judge from the Northern District of Illinois, teamed up with a professor from Chicago Law named Professor Neal. And they just drafted out this idea of an MDL statute. and they just drafted out this idea of an MDL statute. So that's kind of the beginning of things. Over the course of time, the MDL subcommittee now has been tasked with what kind of rules do we have? And that's been quite the journey. So the multi-district litigation writ large is statutory. That's right.

It's 28 United States Code Section 1407, passed in 1968 by Congress. So if you want to complain about multi-district litigation as a theory, that's Congress. There's nothing to do about that. Yes. But on the specific rules and how lead counsel is picked, for instance, there certainly have been criticisms of that as well, and that it can distort litigation, right? Well, so here's the way I'd answer that. What is the purpose of 1407? The purpose of 1407 is we have this multiple cases. And to be clear, 72% of the MDLs that the panel has centralized involve 100 cases or less. Okay. So if you think about

that, the vast majority of MDLs could be just something as simple as we've got multiple class actions filed in the antitrust area and we need to centralize those so we don't have the CFO of a corporation having to testify in multiple districts. Or we can manage discovery efficiently. multiple districts, or we can manage discovery efficiently, or we can have some rulings that are not in conflict with each other, and the case can proceed in an organized, efficient way. But the idea is we didn't want, we are intentionally sacrificing the individual nature of certain actions for what Congress determined was a better good, and that is efficiency of handling these cases. So one of the criticisms of MDL is it takes too long. And let's be clear, multi-district litigation is a terrible system for dealing with mass litigation, unless you compare it to every other system out there.

And then it's the best we have. Why? Because it's the system that quickly gets us to issues, quickly gets us to a discovery plan, allows one judge to manage the case, and gets the parties on the same page. So when leadership counsel is appointed, and by the way, I've had three MDLs, only two of those have leadership counsel been appointed. One, it was just kind of a de facto, everybody come in here, let's talk about the best way to resolve this case. And leaders kind of arose from the masses. And that was the way to handle that case. So every MDL is different. But what I would say is the reason we have to appoint counsel is the same reason we centralized these cases in the first

place. Just as you can't handle 10,000 cases spread across 55 districts, you can't have 250 lawyers in the courtroom on the plaintiff's side, all with a different view about how to go about litigating the case. Judicial Panel on Multi-District Litigation. We had an annual conference of transferee judges come in, and we really trained and reinforced the idea that you have to be fair, and these appointments have to go through a fair, transparent process. Now, you know, one of the things that's been argued is this repeat player problem. But I always use this analogy when it comes to repeat players. What do you mean by repeat player, Judge? A repeat player is, the argument is, well, we keep getting the same lawyers appointed to handle these cases. And there ought to be fairness in passing these cases out to a different set of lawyers. So, David, let's say you had a plumbing problem this weekend

and you tried to fix it but couldn't and you called a plumbing service. So far, it's very difficult to imagine any of this. The plumbing problem is not difficult. The fixing it. Please continue, Judge. My plumbers repair what I try to fix. So let's say you bring a plumber out and he shows up on time. He's presentable.

He comes in your house, doesn't make a mess, fixes the problem in a half hour and charges you $100. And you're sitting there thinking, that was the most fantastic service experience I've ever had in my life. Well, 17 months later, you have another plumbing problem. Do you go to the yellow pages and go, you know what, that guy did a really good job, but I'm going to give somebody else a shot here because that's fair. So I think that's the answer to the repeat player problem. Now, the repeat player problem is a problem if we have people being selected in these positions who don't do a good job and keep getting into the positions because of other non-merits-based considerations. But I don't know many trans-free judges that want to pick lawyers who aren't going to do a good job in moving the case along.

So, again, I think sometimes that just comes down to I think I should have gotten picked and didn't. All right. Last question, Judge. Is it difficult as a judge? You clearly take your job very seriously and the role of process and and justice is it hard to watch the NCAA tournament and do you find yourself uh you know like that you could be a ref for those games really criticizing the refs wishing there were an 11th circuit of refs, et cetera. Well, I better just recuse myself from answering this question, at least on a podcast. I will be glad to answer this question offline. But I'll say this.

We're talking about this. Is this a reference to the Samford block call? Oh, that was as terrible. That was, you know, and the ref was out of position. If you go back and look at the replay, he's the trail referee. I don't think he's supposed to have anybody behind him. And he's, I don't remember exactly where he was in the backcourt, but he had to spin around to take a look at that. And that was a clean block, obviously.

We all know that. Yeah. But, hey, how about Sanford? What a great season they had. And by the way, I'm a little biased in this respect. My wife retired from working at Sanford. We're big Sanford fans, but the school's really done well with that. The president and the admissions folks have put out some memes saying, you know, make

the right call with a picture of that block. Come to Samford. That's perfect. That's perfect. Yeah, Samford's a great school. I have a lot of friends who've sent their kids to Samford. For those who don't know, Sam it's a wonderful college in Alabama. But I have to say, Judge, I was born in Auburn.

I was raised in Kentucky, which made the opening weekend of the NCAA tournament just extraordinarily painful. But the best post that I saw about the NCAA tournament was after Yale beat Auburn, which are words I never thought I would say in my life. Somebody posted, just really happy for those Yale kids. They finally caught a break. Yeah, really? That's good.

Well, Judge Proctor, thank you so much for joining us today and explaining the committees, the conference, and a little more on multi-district litigation, something we don't really get to cover on this podcast, but I bet we will be more and more. Thank you for having me. It's been a pleasure. David, I got to say, I think that the whole judicial conference and all these committees and subcommittees are an undercovered part of judicial life. You know, we spent a lot of time on this podcast emphasizing that process determines outcomes in so many cases. And this is a part of process that we spend no time on and that reporters spend no time on. The civil rules

of procedure are how a lot of cases are decided. I mean, 12B6, that's how your case gets dismissed. It's gone. It's failure to state a claim. I honestly think one of the reasons why our podcast is successful is because all of the judiciary is undercovered. And so when we came in and started covering the judiciary very intentionally, we were kind of in a blue ocean environment as far as coverage of the judiciary, coverage of court decision down to the circuit court level and sometimes the district court level, that is not something that is very common in media. And so you're exactly right. In an undercover judiciary,

these kinds of process issues are even more profoundly undercovered as important as they are. And with that, as I said, next episode, lots of Supreme Court and lots of other things. Dun, dun, dun, On Advisory Vigilance.