David Lat is a Filipino-American lawyer and writer. He has worked in the public and private legal sectors, and is well-known for his 2014 legal novel, Supreme Ambitions, and blogging on his site Above the Law. He sat down with The Politic to talk about his writing, the status quo of progressivism (and partisanism) in the judiciary, and to divulge his thoughts on the hottest sitting member of the judiciary.
The Politic: What was the impetus for deciding to sit down and write Supreme Ambitions?
David Lat: I had been wanting to write a novel for a very long time, and I also had a wonderful time clerking right after graduating from Yale Law School–it was such an interesting and formative experience. A lot of first novels are, in many ways, coming of age stories, and Supreme Ambitions is a coming of age story about a young law student who has a certain idealistic vision of the way the law and courts work and sees that vision tested by reality. So it was a combination of basically a lifelong ambition of mine, in terms of writing a novel, and writing about a world that I am just fascinated by: the federal judiciary.
Reading the book, I started to see pieces of characters that looked very familiar to your biography. Which characters would you say are the most similar to you, and how did you draw on your own personal experience to build characters like Audrey and Amit?
Those are the two characters who I would say are the most similar to me– Audrey, because she is a Filipino-American graduate of Yale Law School who desperately wants to clerk for the Supreme Court (which was my ambition coming out of law school), and Amit, for a couple of reasons; I don’t want to spoil some of the plot lines, but I’ll just say he resonated with me in terms of his intensity and Type A qualities.
You mentioned that you were interested in writing a novel for a while. Was there ever any other topic you were thinking about covering?
Certainly the courts are the thing I’m most fascinated by. In my writing over the years, I’ve written about different areas of the legal profession, including large law firms and law schools, but the courts are the subject closest to my heart. When I first started blogging under a pseudonym, doing a site called Underneath Their Robes, it was all about federal judges. In many ways, the judiciary is my original and favorite subject, even though over the years I’ve branched into a lot of other areas of the legal profession.
What is it about federal judges that made you want to cover them?
A couple of things. Certainly, the prestige and the power they wield in our society and in our democratic system make them figures of fascination. These are people who are deciding the scope of our constitutional rights, who are construing major laws. Their decisions have effects on pretty much everyone, and yet we often don’t know very much about them. The judiciary is a branch that is often shrouded in mystery. We read judges’ opinions, but we don’t necessarily know how that sausage got made. So I think a lot of my blogging at Underneath Their Robes, and a lot of my writing in Supreme Ambitions, is aimed at pulling the curtain back and showing that these judges and their clerks – in addition to being great legal minds – are also people too, and are subject to all of the frailties and biases that all of us are subject to as human beings.
So it’s really a story that applies to a lot of professions, not just the legal ones.
Yes, absolutely. My parents are doctors, and my dad was saying that a lot of the book resonated with him, just in terms of graduating from medical school and being a resident and working under a senior doctor, just like a clerk works under a judge, and having certain ideas about what the profession is going to be like and having those ideas tested. In many ways, the coming of age story is quite universal.
Reading your book in 2018, it reads like it’s a testament to a certain time period, and I was wondering if you’ve started to reflect on Supreme Ambitions after Obergefell, and how that changes the way you look at the Geidner case [which asks if there is a constitutional right to gay marriage] that you came up with. Reading the way Judge Polanski interacts with Audrey [by flirting frequently] makes me think of the #MeToo movement, and how what he did would not be so acceptable now. In light of more recent events, how does that change how you read your own book?
There are several aspects of the book that resonate in different and interesting ways in 2018 compared to 2014 when I wrote it. Again, I don’t want to include too many spoilers, but there’s certainly one major event in the book that comes as a surprise that actually turns out to be something that happened in real life, that many of us were not expecting.
Some of the issues you point out also have interesting resonance today. Certainly the issue of gay marriage– in the book, [the fictitious Geidner case about the constitutionality of a ban on gay marriage] is an issue where there is a lot of disagreement, and it actually helps a conservative judge [especially the main character’s boss, Judge Stinson] to be taking the anti-gay marriage stance. But even just a few short years later, it doesn’t seem to be an issue that we are fighting that much about now. Certainly there are issues about religious liberties and the intersection with gay rights– the recent Masterpiece Cakeshop case in the Supreme Court, about a baker who didn’t want to make a cake for a same sex wedding, is a good example of that –but I don’t really hear many people, including many conservatives, express a burning desire to reverse or overturn Obergefell. It’s not like Roe v Wade, where, as we’re seeing in the debate over Judge Kavanaugh’s Supreme Court nomination, there are people on both sides of that issue: some want to see Roe overruled, some want to see it preserved. I don’t really see that happening in the same way for Obergefell.
And then you raise an interesting issue about the #MeToo movement, an issue that the federal judiciary has confronted. There were allegations of sexual harassment made against Judge Alex Kozinski, who, full disclosure, did provide a blurb for Supreme Ambitions, and aspects of Judge Polanski are modeled on Judge Kozinski. I should clarify, because people have asked me this, that I did not know about the allegations against Judge Kozinski until they were reported in the Washington Post and other media outlets. There were vague rumors, but rumors are not the same as detailed allegations. One thing that has made the #MeToo movement so powerful is that victims have come forward with detailed allegations. We weren’t just left to wonder, “Oh, Harvey Weinstein doesn’t have a great reputation,” but now we’ve actually heard about the specific allegations against him.
How did the judiciary and the Supreme Court react to #MeToo? Was there a different dynamic than in the media industry?
The judiciary has responded to the #MeToo movement and sexual harassment issues in a commendable way. At the end of the year, Chief Justice Roberts cited the issue and the need to address it in his year-end report on the federal judiciary. He asked for a working group to be convened to study the issue, and a working group was convened. In June, they issued a long and detailed report with a number of recommendations, and those recommendations are now being debated and discussed. In some ways, I like to think the legal profession’s response to these issues has been what you’d hope for out of the legal profession. There’s been study, there’s been analysis, there’s been debate, and now we want to establish clear rules about what is and is not acceptable workplace conduct. I don’t think it’s been as messy in the judiciary as it has been in the media industry, where you’ve had many more people affected, many more victims and many more perpetrators, and many more people losing their jobs. But the judiciary is a lot smaller than the media and it has a whole different set of issues. Overall, I think the judiciary has dealt with the issue well. There are other areas of the profession, for example law firms, where I think the #MeToo movement and the time of reckoning haven’t fully arrived yet.
It was a really positive answer until you got to private law firms and now I’m starting to feel a little dejected. I want to backtrack to what you said about Obergefell and Roe. I was wondering if you had any thoughts as to why conservatives are reacting so differently to these cases– why one seems to be more set in stone?
That’s interesting. One very important issue in the law, especially when it comes to whether to overrule a precedent, is this issue of reliance– to what extent have people relied on a particular precedent, to what extent have they shaped their relationships in light of a particular decision. Obergefell has significant reliance interests, because people in many ways are living their lives with the understanding that gay marriage is now an option nationwide. It implicates a lot of very significant reliance interests. With Roe, there are reliance interests, but I don’t think they are quite as strong, just given the nature of abortion as an issue. And I think also that for some religious conservatives, those who believe that life begins at conception, abortion essentially involves, in their view, a large-scale killing or taking of human life, whereas gay marriage, while deeply problematic for many religious conservatives, is not nearly as significant or profound an issue. Ever since Roe, we’ve had decades of argument over abortion and how much it should be regulated. We haven’t really had that kind of argument after Obergefell. It seems that people have been more willing to accept it and move on.
I’m wondering, when thinking about Roe, there are easy ways to roll back parts of it–like Casey stepped back a lot of things Roe did; you don’t have to get rid of every provision in Roe for some parts of Roe to exist, but is there a way to roll back parts of Obergefell?
The issue here would be these religious-liberty exceptions to the right to same-sex marriage. So, for example, there was a case that came after Obergefell called Pavan v. Smith, which was about the ability of same-sex couples to have both of their names on the birth certificate, and the Supreme Court, in a nutshell, held that yes, they are entitled to have both of their names on the birth certificate. If the Supreme Court had gone the other way, you could have asked, “Is that a limiting or rolling back of Obergefell, where yes, you have marriage equality, but some marriages are more equal than others?”
If we have follow-up litigation to Masterpiece Cakeshop, and vendors are given wide leeway to deny services to same-sex couples, you could say that in a way is also limiting or rolling back Obergefell. But I don’t know that we’re going to see huge amounts of that kind of rollback. There are vendors who decline to work with people for all sorts of reasons, and if some court rulings cause gay couples to have to seek out different vendors, I don’t know how big an issue that is. When my husband and I got married, we wouldn’t want one of our vendors to be against gay marriage; we would just go to somebody else. Why would you want to get services from somebody who doesn’t support your union? I get the principle of equality, but just as a practical matter, I don’t want somebody involved in my wedding who’s only involved because they’re legally compelled to be involved.
How accurate is Supreme Ambitions to the real world of law?
I like to think it is fairly realistic. There are perhaps some aspects that are exaggerated, but I think there are aspects of it that are very accurate, which is why I think it was generally well-received by lawyers and law clerks and people in that world. Like any novelist, I did take some poetic license, but some of the events in the book are based on things that either happened to me or happened to people I know, so I guess the upshot I would say is I think fairly accurate– more accurate than a conventional legal thriller.
There’s a lot going on about connections– like whether your judge is able to talk to the right justice to get you that clerkship. Is that also accurate?
Yes. One thing that I’ve come to realize the longer that I cover the legal profession is yes, there are meritocratic aspects to it, but this profession like so many others is about who you know. And that’s not just the case for clerkships. It’s the case for when you are trying to get a job at a certain law firm; it’s the case when you’re trying to get a position as a law professor at a particular school. Yes, you do need the qualifications for all of these jobs, but connections matter in a very large way.
It’s one of the scary things about leaving school.
It’s interesting– you could argue that one of the reasons why people go to places like Yale is not necessarily because of the quality of the instruction, because there are many other great institutions that offer a great education in terms of the substance of what you’re learning, but it’s because of the connections you make. Because the people you’re going to school with are going to be very important people someday, and they’ll be able to help you and you’ll be able to help them. So there is definitely a sort of network effect going on.
Did you ever get in trouble for anything you wrote on Underneath Their Robes?
Occasionally, people might take issue with some particular article, but I didn’t really get in serious trouble until the end, when I revealed myself as the author of this blog in an interview with the New Yorker. I was working at the time as a federal prosecutor and I was doing this under a pseudonym, pretending to be a woman who worked on the West Coast and at a law firm, instead of the guy working on the East Coast in government that I actually was. And so that created a certain amount of awkwardness in the U.S. Attorney’s office in New Jersey, which is where I was working at the time. My boss at the time, Chris Christie, who then went on to become governor, was not too thrilled about it. But in the end, he was more forgiving about it than he really had to be. After I put the blog behind a password and made it unavailable, I was allowed to remain in the U.S. Attorney’s office, which I did for a time until I realized that I just missed the writing and the blogging, and that was what I wanted to get back to. So after a couple of months, I ended up leaving the office anyway because I wanted to go back to writing and blogging.
You write some very intellectually serious stuff on Above the Law, and you also write some more lighthearted stuff on ATL and certainly on Underneath Their Robes. How do you balance those two parts of your writing and those two parts of your public persona?
What I really enjoy about blogging and online writing is the freedom it affords you. You can write a detailed, thoughtful, serious analysis of judicial nominations that goes on for several thousand words like a magazine piece, and then you can write some totally humorous or gossipy or frivolous item about some other ridiculous thing you see in the legal profession. One of the things that’s a little more confining about print writing, which I also do a good amount of, is that there’s a certain expectation about voice, which is not the case with online writing or blogging. I think it’s great that Above the Law can have so many different voices. I founded the site and was the first and only writer for the first two years, but the site has now been around for 12 years and has five full-time writers and something like 50 columnists who write on different topics every week or every month. So there are many, many voices now, and a lot of those voices I don’t agree with on everything, but our end goals of enlightening and entertaining are the same, even if we go about them in different ways.
How much of your time do you spend writing now versus managing the blog?
Back in October of last year, after 11 or so years leading the site, I stepped down as managing editor and moved to this role that I basically created for myself called editor-at-large. Part of the reason for this was that my husband and I had a baby, and I wanted to have a schedule that lent itself more to parenting responsibilities. So now in my new role, I write long-form pieces, not breaking news, or I also write pieces commissioned by advertisers, so-called “branded” or “native” content. The good thing about both of these things is they lend themselves to a very normal, regular schedule. So I’m no longer responsible for whipping something up when Trump does this or the Supreme Court does that and there needs to be coverage on it within an hour. What I find myself doing a little bit more since I’m not writing about breaking news these days is tweeting more. Twitter is a great way to chime in very quickly on the news of the day without having to write 800 or 1200 words. So I have found that somewhat liberating. So going back to your question, most of my time now is spent reporting and writing, and relatively little is spent on administrative things, and that is how I like it.
Can you compare working as a clerk in a federal appeals court, working for the U.S. Attorney’s office in New Jersey, and also working in the private sector?
My clerkship and my work in the U.S. Attorney’s office were actually quite similar. When I was working in the U.S. Attorney’s office, I was doing appellate work, just as I was doing when I was clerking on an appeals court– handling appeals from cases that were decided in the trial courts. That work is very cerebral and academic, and it involves a lot of research and writing. I love to write, and that was what I really enjoyed about those jobs. The downside of that type of work is it’s very monastic. You can go days without your phone ringing; you’re just dwelling in this very academic world of the law. When I was at the law firm, it was much more fast-paced, the hours were certainly longer, and there was a lot more interaction with other people– whether colleagues at the firm or opposing counsel– but at the same time it wasn’t always the most pleasurable interaction. Sometimes it might be arguing with opposing counsel about some documents you want to get from them or some documents they want to get from you, for example.
When I think of my legal jobs, I would say my favorite was the clerkship, partly because of the job– it’s just amazing to be working on such important cases right after graduating law school– but also because of the people I worked with: my judge, Judge O’Scannlain, and my three co-clerks, all just wonderful people. They played a big role in making the experience as great as it was.
I wanted to hear your reflections on what’s happening with the Supreme Court today, especially the Kavanaugh nomination and also the rise of partisanship.
I think the extent to which law has been politicized and our public discourse has been overtaken by partisanship is very unfortunate. As I wrote in a recent story, I would want us to go back to a day when both Ruth Bader Ginsburg and Antonin Scalia could get confirmed with unanimous or near-unanimous votes. They were both very qualified, brilliant judges who deserved to be justices, and the fact that they have different judicial philosophies doesn’t make them unqualified to be on the Supreme Court. But now everything is very polarized, and Judge Kavanaugh– who is also very qualified– is probably going to squeak by with only a party-line vote. If you look back to when Justice Kennedy was confirmed, it was a very different time, and now decades later with the nomination of his potential successor, things are just so much more acrimonious.
Do you think we can go back to that?
Unfortunately, I’m not really sure how we would make our way back to that. Neither side really has an incentive to lay down its arms, and also they benefit politically from turning the courts into a political issue: whether conservative or liberal, they can rally their base behind making the Supreme Court an issue. So it’s in the parties’ interest to keep the judiciary as politicized as it is, and I’m not hopeful about the prospect of going back to a less politicized age.
Do you think the Court will continue as it is?
I think for now, the Court probably will continue, but one thing that I wonder about and that other commentators wonder about is this: in the event that we have a Democratic Senate once again, could the Democrats try to essentially take revenge for what happened to Judge Merrick Garland, in terms of his not getting a hearing as a Supreme Court nominee? That would just leave a seat vacant. And then what if the Republicans took back the Senate, and they decided that they weren’t going to have a hearing for the Democratic nominee? There was something satirical on the Onion or somewhere where they basically joked that in 2050, the Supreme Court will just consist of Elena Kagan, with both sides refusing to confirm the other side’s nominees. I don’t think we’re going to get to that point, but the fact that it could even be joked about is scary.
Growing up, what was your dream job?
Gosh, what was my dream job? I’m embarrassed, I can’t even remember. It wasn’t like I wanted to be an astronaut or anything.
How long has law been the career for you? Has it been so long that you’ve forgotten what came before?
No. I kind of fell into the law because I was a senior in college and didn’t know what else to do with myself, and I didn’t like the sight of blood so I obviously wasn’t going to medical school. I was not one of those kids who at age six wanted to be a lawyer; I didn’t really understand what lawyers did– not until I went to law school
You know what, now that I think about it, I think I wanted to be a business tycoon. I played a lot of games of Monopoly as a kid.
I think the next thing we need is a board game for young aspiring lawyers.
You know, there is a board game for lawyers, called LAWSUIT! But it’s not about career paths, it’s about lawsuits and running a law practice.
Bringing us back to your Underneath Their Robes days, I want an update for today: who would be the hottest judge or justice?
Judge Kethledge, a finalist for the Supreme Court nomination that went to Judge Kavanaugh, is a very, very handsome man. And I have it on good authority that he’s an avid exerciser, so underneath his robe, he’s supposed to be in great shape.
Other than your own, what’s your favorite publication to read?
I know everyone loves to hate on it, but I still love The New York Times. I know that the president is not a fan, and I know that even people on the left think that it is not strong enough a voice, but I still think that it is the standard by which much of journalism is measured.
What would be your advice to a Yale student in general going into a career, and also for one who’s going into a career in law?
This is advice I probably would have given to myself, and it goes back to what we talked about at the start of the interview. Focus a lot on relationships, on building friendships with your classmates, on finding mentors among your professors. Many students at places like Yale fixate on the books and studying and getting good grades, and certainly I did, and you should certainly do that and be diligent students. But don’t forget to have some fun outside of the classroom, and don’t forget to strengthen your relationships. In the end, when it comes to your career, relationships could be just as important as, if not more important than, your transcript.