{"id":56327,"date":"2025-08-03T22:30:09","date_gmt":"2025-08-03T22:30:09","guid":{"rendered":"https:\/\/www.newsbeep.com\/us\/56327\/"},"modified":"2025-08-03T22:30:09","modified_gmt":"2025-08-03T22:30:09","slug":"judicial-notice-08-03-25-another-judges-ai-fail","status":"publish","type":"post","link":"https:\/\/www.newsbeep.com\/us\/56327\/","title":{"rendered":"Judicial Notice (08.03.25): Another Judge\u2019s AI Fail?"},"content":{"rendered":"

\"\"<\/a>Outside the Latham & Watkins offices at 505 Montgomery Street in San Francisco (photo by David Lat).<\/p>\n

This week\u2019s Judicial Notice is sponsored by<\/p>\n

\"\"<\/a><\/p>\n

With a presence in over a dozen cities across the United States and Asia, Lateral Link boasts an expert recruiting team of former practicing attorneys dedicated to sourcing top-tier legal talent for a diverse clientele, including major international law firms and Fortune 500 companies. To learn more about Lateral Link, please visit our website<\/a>.<\/p>\n

Our family spent last week on Cape Cod, in Provincetown\u2014which I highly recommend. Zach is not a beach person, but P-town is a beach town that even non-beach people can enjoy. It boasts history, culture, surprisingly good restaurants, and even celebrity sightings: a friend of ours who was also visiting last week spotted Ben Affleck and Tony Kushner (separately\u2014Ben with his mother at a gallery and Tony at Joe Coffee, which makes delicious pastries).<\/p>\n

Busy taking our boys to Family Week fun<\/a>, including whale watching and a scavenger hunt, Zach and I missed the celebrity sightings. But we did meet a law-world celeb, a well-known Harvard Law professor who summers in P-town (no, not Alan Dershowitz\u2014he vacations in Martha\u2019s Vineyard, where he recently suffered the indignity of Pierogi-gate<\/a>). This was our first visit to Provincetown, but it won\u2019t be our last.<\/p>\n

Because we were on vacation, I wasn\u2019t able to record a new episode of the Original Jurisdiction podcast, so there won\u2019t be one for this coming Wednesday. But I hope to record a make-up episode sometime later this month.<\/p>\n

Now, on to the news (which I did keep an eye on, despite being at the beach).<\/p>\n

Lawyer of the Week: Bill Essayli.<\/p>\n

Over the past few weeks, I\u2019ve been writing about the drama surrounding U.S. attorney appointments in the Northern District of New York and the District of New Jersey. In both districts, the Trump administration took two \u201cinterim\u201d U.S. attorneys whose terms were about to expire or maybe had expired, John A. Sarcone III (N.D.N.Y.) and Alina Habba (D.N.J.), and turned them into \u201cacting\u201d U.S. attorneys.<\/p>\n

Now the controversy and confusion over interim versus acting U.S. attorneys have spread to the West Coast. Last week, the Trump administration used the same interim-to-acting gambit to install<\/a> Bill Essayli and Sigal Chattah as the acting U.S. attorneys for the Central District of California (Los Angeles) and Nevada, respectively.<\/p>\n

What\u2019s behind this unusual maneuvering? The basic issue is that the Senate has to confirm the president\u2019s U.S. attorney picks\u2014and not only that, but the Senate\u2019s so-called \u201cblue slip\u201d custom<\/a> allows either of a state\u2019s two senators to effectively veto a U.S. attorney pick by withholding their support (previously done by withholding an actual slip of blue paper). In the four states at issue\u2014New York, New Jersey, California, and Nevada\u2014the Democratic senators vociferously object to Trump\u2019s U.S. attorney selections. This has given rise to multiple impasses\u2014which the Trump administration is now trying to get around using its interim-to-acting strategy.<\/p>\n

Is the strategy legal, i.e., are these U.S. attorneys \u201clegit\u201d? It\u2019s complicated. Figuring it out involves analyzing the interplay between 28 U.S.C. \u00a7 546, a statute governing how to fill U.S. attorney vacancies; the Federal Vacancies Reform Act, 5 U.S.C. \u00a7\u00a7 3345 et seq.; and the Appointments Clause, the constitutional provision controlling how certain federal offices are filled. For dueling perspectives, compare Paul Cassell\u2019s Volokh Conspiracy post<\/a>, defending the Trump administration\u2019s approach, with Aaron Zelinsky\u2019s and David Reiser\u2019s Lawfare post<\/a>, criticizing the administration\u2019s strategy.<\/p>\n

The Trump administration\u2019s choice for U.S. attorney in Los Angeles\u2014Bill Essayli, a former state and federal prosecutor, as well as a California state assemblyman\u2014was in the news last week for reasons other than how he was installed. And the reasons reinforce why California\u2019s two Democratic senators, Alex Padilla and Adam Schiff, view Essayli as \u201cuniquely unqualified to serve.\u201d<\/p>\n

First, Essayli\u2019s office moved to dismiss<\/a> two high-profile criminal cases in Los Angeles. One involved fraud and other criminal charges against Andrew Wiederhorn, the founder of Fatburger\u2014and a Trump donor. The other was an unrelated case against Trevor Kirk, a deputy sherif convicted of abusing his authority in assaulting a woman who recorded his actions on her phone.<\/p>\n

Both moves generated extensive criticism of Essayli\u2014as has his strong support of the Trump administration\u2019s aggressive immigration enforcement in southern California. That crackdown was the subject of a Ninth Circuit ruling<\/a> on Friday, ordering the administration to stop making immigration-related arrests without reasonable suspicion\u2014and if you\u2019re thinking to yourself, \u201cisn\u2019t that already illegal?\u201d, you\u2019re right (as noted by Josh Barro and Ken White of Serious Trouble<\/a>).<\/p>\n

Second, moving from public-facing problems to internal issues, Essayli hasn\u2019t endeared himself to his colleagues during his three-plus months leading the office. According to Ben Penn and Maia Spoto of Bloomberg Law<\/a>, who spoke with more than 30 current and former employees in the office as part of their reporting, Essayli \u201chas ignored and overruled the recommendations of senior prosecutors, instructed staff to disregard Justice Department policies, and forced lawyers to redo indictment failures before new grand juries.\u201d In addition, Penn and Spoto claim, \u201cEssayli\u2019s pattern of yelling at career attorneys to pursue MAGA-aligned cases despite their warnings of insufficient evidence has contributed to an exodus from the L.A.-based district.\u201d<\/p>\n

In other news about U.S. attorneys:<\/p>\n

In New Jersey, the situation involving acting U.S. attorney Alina Habba remains unresolved: criminal cases have been put on hold, per The Times<\/a> (gift link), and things might remain unsettled for a while. Chief Judge Matthew Brann (M.D. Pa.)\u2014who\u2019s handling one case in which the defendant is challenging Habba\u2019s authority, after the Third Circuit transferred it from the District of New Jersey to his courtroom\u2014declined to rule<\/a> on the issue for now. Instead, he ordered full briefing, with oral argument scheduled for August 15. <\/p>\n

You know what could make all these problems go away? Confirming some U.S. attorneys\u2014like Jeanine Pirro, whom the Senate confirmed<\/a>, 50-45, as U.S. attorney for the District of Columbia. Pirro has her critics, who object to what they view as her \u201cderanged\u201d<\/a> pronouncements during two decades on Fox News. But at least she has some prosecutorial experience (albeit from almost 20 years ago), having served as an assistant district attorney and later district attorney in Westchester County\u2014giving her infinitely more prosecutorial experience than either Alina Habba or Ed Martin, Trump\u2019s original nominee for D.C. U.S. attorney.<\/p>\n

In other news about government lawyers:<\/p>\n

Speaking of Senate confirmations, former Ohio solicitor general T. Elliot Gaiser was confirmed<\/a>, 53-45, to serve as assistant attorney general (AAG) leading the Office of Legal Counsel (OLC) at the Department of Justice (DOJ). It will be interesting to see whether having a Senate-confirmed head will give OLC more clout; early in the Trump administration, it was \u201clargely sidelined,\u201d as Charlie Savage wrote in The Times<\/a> (gift link). Gaiser will be succeeded<\/a> as Ohio SG by deputy SG Mathura Sridharan, who argued\u2014and won\u2014Ohio v. EPA.<\/p>\n

There\u2019s no Senate-confirmed AAG for the Criminal Division, but at least now there\u2019s a nominee<\/a>: Andrew Tysen Duva, an assistant U.S. attorney in Jacksonville (N.D. Fla.). He\u2019s an unusual pick; as noted by Bloomberg Law<\/a>, \u201c[t]he nomination of a line prosecutor breaks with a pattern of recent division leaders having higher-level government experience.\u201d<\/p>\n

In terms of departures, two top deputies to Assistant Attorney General Gail Slater at the Antitrust Division, Roger Alford and Bill Rinner, were both fired\u2014reportedly for \u201cinsubordination,\u201d per CBS News<\/a>. The terminations could reflect internal disagreements in the administration over how hawkish to be on antitrust policy, as suggested by Andrew Ross Sorkin and his colleagues at DealBook<\/a>.<\/p>\n

In memoriam:<\/p>\n

Michael Cardozo\u2014the longest-serving corporation counsel of New York City, as well as a former partner at Proskauer Rose and former president of the New York City Bar Association\u2014passed away<\/a> at 84. (Yes, he was related to Justice Benjamin Cardozo, who was a cousin of his paternal great-grandfather.)<\/p>\n

Roger Dennis, founding dean of Drexel University\u2019s Thomas R. Kline School of Law, passed away<\/a> at 75.<\/p>\n

Wesley LePatner, a 43-year-old Blackstone executive who was killed<\/a> in last Monday\u2019s horrific shooting at 345 Park Avenue in Manhattan, was the daughter<\/a> of two lawyers: Larry Mittman, senior counsel at Haynes Boone, and Ellyn Mittman, who has her own firm. Please keep them in your thoughts and prayers.<\/p>\n

Judge of the Week: Judge Henry Wingate.<\/p>\n

A second federal trial judge issued an error-riddled ruling. And then he had to withdraw it, after counsel politely filed a motion asking, \u201cYour Honor, WTF?\u201d<\/p>\n

Last week, I wrote about Judge Julien Xavier Neals (D.N.J.), who had to withdraw a decision in a securities case after lawyers identified multiple mistakes in his opinion. At the time, it wasn\u2019t clear that the problems were caused by misuse of artificial intelligence (as opposed to, say, garden-variety incompetence by a clerk). But according to a subsequent report by Mike Scarcella of Reuters<\/a>, it was in fact an AI snafu: a temporary assistant in Judge Neals\u2019s chambers put together AI-generated research, which was included in a draft decision that was accidentally placed on the public docket before it was properly reviewed.<\/p>\n

More recently, we learned about a similar situation involving Judge Henry Wingate (S.D. Miss.), who issued a temporary restraining order (TRO) enjoining enforcement of a Mississippi state law prohibiting certain DEI programs in public educational institutions. As reported by Mississippi Today<\/a>, the original TRO<\/a> listed non-parties as plaintiffs, misquoted both the complaint and the challenged legislation, and cited a non-existent case. After lawyers from the Mississippi Attorney General\u2019s Office filed a motion to clarify or correct<\/a> the order, Judge Wingate replaced it. As of now, we don\u2019t have confirmation that these were AI-induced problems\u2014but they sure look like ones.<\/p>\n

There isn\u2019t much to say about this that isn\u2019t obvious. First, as my in-laws might say, \u201coy vey\u201d\u2014or to invoke my own Filipino heritage, \u201csusmariosep.\u201d<\/a> Second, to quote the title of a Bloomberg Law piece<\/a> by Professor Gary Marchant, \u201cJudges Who Benefit From AI Technology Must Avoid Its Hazards\u201d\u2014although you don\u2019t need to be a law professor or an AI expert like Marchant to appreciate this.<\/p>\n

To be charitable\u2014which I try to be in these pages, in an atonement of sorts<\/a> for the snark of my youth\u2014I\u2019d say this: taken together, these two incidents show that AI mistakes can happen to anyone. Judge Neals, based in New Jersey, is a relatively new judge (appointed in 2021) and a Democratic appointee (Biden); Judge Wingate, based in Mississippi, is a veteran judge (appointed in 1985) and a Republican appointee. So AI errors can be committed by judges in different parts of the country, of varying levels of experience, and of presumably different jurisprudential or ideological bents. (If I ever make an AI-induced mistake in my future writing, please quote this paragraph and go easy on me; there but for the grace of Claude go I.)<\/p>\n

In other news about judges and the judiciary:<\/p>\n

What heavy-metal band is each Supreme Court justice? There\u2019s a SCOTUSblog post<\/a> for that\u2014written by my husband, Zach Shemtob (whose penchant for metal gives me and Harlan headaches on long car rides, but Zach invokes \u201cdriver\u2019s prerogative\u201d). I don\u2019t know anything about metal, so much of the post eluded me\u2014but Sarah Isgur and David French had fun with it on Advisory Opinions<\/a>.<\/p>\n

According to Zach, Justice Clarence Thomas is Bolt Thrower, Justice Sonia Sotomayor is Rage Against the Machine, and Justice Brett Kavanaugh is\u2026 not very metal at all, which is probably why I\u2019m an admirer of his jurisprudence. I also appreciated Justice Kavanaugh\u2019s thoughtful comments at the Eighth Circuit Judicial Conference, where he discussed everything from the emergency docket<\/a> to judicial independence<\/a> to his media-consumption habits<\/a>. (By the way, I\u2019ve previously spoken<\/a> at six federal judicial conferences\u2014and I\u2019m pretty much always happy to do it, if you\u2019d like to invite me.)<\/p>\n

In his Eighth Circuit remarks, Justice Kavanaugh expressed \u201cgreat respect\u201d for district judges, especially given \u201chow difficult that job is\u201d nowadays. He didn\u2019t go into detail, but the attendees surely knew what he was referring to\u2014perhaps the 400 threatening voicemails and six credible death threats received by<\/a> Chief Judge John McConnell (D.R.I.). Or the swatting<\/a> directed at Judge John Coughenour (W.D. Wash.), who had police show up at his house, weapons drawn, after they received a false report that he had killed his wife.<\/p>\n

The Federal Circuit\u2019s \u201cSpecial Committee\u201d recommended<\/a> keeping Judge Pauline Newman suspended for a third year\u2014even though Judge Newman still has a valid presidential commission and hasn\u2019t been impeached, last time I checked. I\u2019m with Chris Williams of Above the Law<\/a>: \u201cJust let her work already.\u201d I\u2019d urge Chief Judge Kimberly Moore, who has proven her point\u2014okay, we get it, you\u2019re the Queen of the Federal Circuit\u2014to let Judge Newman back on the bench. (It could even be in a probationary status with a reduced caseload, if Chief Judge Moore is worried about Judge Newman falling behind with her work.)<\/p>\n

In nominations news, Emil Bove is now the Honorable Emil Joseph Bove III (or will be soon, if he hasn\u2019t been sworn in yet). On Tuesday, the Senate confirmed him<\/a> to serve on the Third Circuit, 50-49\u2014with all Democrats and Senators Lisa Murkowski (R-Alaska) and Susan Collins (R-Me.) opposed. This came despite three whistleblowers claiming to have negative information about Bove from his time at the DOJ. I\u2019ve written plenty above Bove, not all of it positive; all I\u2019ll say now is that I hope he proves his critics wrong as a judge. (And on the \u201cbright\u201d side, his critics should probably be glad that he\u2019s a circuit rather than district judge; a circuit judge needs another judge\u2019s vote if he wants to do anything crazy, and the Third Circuit is not a crazy court.)<\/p>\n

In other nominations news, two other Trump circuit picks, Pierce Atwood partner Joshua Dunlap (1st Cir.) and Jones Day partner Eric Tung (9th Cir.), appear to be cruising toward confirmation; they faced some pushback from Democratic senators, but didn\u2019t say anything that should cause Republican defections. Dunlap fielded questions<\/a> about his past support for a Maine bill that would have required minors to obtain consent of a parent or guardian before having an abortion, while Tung took flak<\/a> over his collegiate scribblings for The Yale Daily News. When it comes to interrogating judicial nominees over their undergraduate writing, I stand by the views I expressed in a 2018 opinion piece for The Wall Street Journal<\/a> (gift link): enough already.<\/p>\n

In memoriam: Judge T.S. Ellis III (E.D. Va.), who handled multiple headline-making matters during more than 35 years on the federal bench, passed away<\/a> at 85. For personal remembrances from a former Ellis clerk, check out Professor Joel Johnson\u2019s tribute to his former boss on Substack<\/a> (via Howard Bashman\u2019s How Appealing<\/a>).<\/p>\n

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On behalf of a valued client, Lateral Link is spearheading an exclusive search for an elite firm skilled in managing high-stakes defamation cases. Known for its expertise in complex defamation matters, the firm maintains a national practice, presenting cases in state and federal courts throughout the U.S., while providing Biglaw-caliber service to its global clientele. The firm seeks a candidate with six to nine years of experience to serve as chief of staff to the founding partner. If hired, you will be responsible for overseeing all legal administrative functions related to the firm, as well as supporting the delivery of legal services to clients, including coordination with outside counsel and other legal representatives. You will also serve as a trusted advisor and thought leader to ensure the founding partner\u2019s time is optimized, priorities are executed, and strategic initiatives are advanced. For immediate consideration, please email your r\u00e9sum\u00e9 to Vered Krasna at vkrasna@laterallink.com<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"Outside the Latham & Watkins offices at 505 Montgomery Street in San Francisco (photo by David Lat). This…\n","protected":false},"author":2,"featured_media":56328,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[45],"tags":[182,181,507,74],"class_list":["post-56327","post","type-post","status-publish","format-standard","has-post-thumbnail","category-artificial-intelligence","tag-ai","tag-artificial-intelligence","tag-artificialintelligence","tag-technology"],"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/56327","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/comments?post=56327"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/posts\/56327\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media\/56328"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/media?parent=56327"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/categories?post=56327"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/us\/wp-json\/wp\/v2\/tags?post=56327"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}