On the question of Neal Katyal, and more importantly the question of who should staff legal jobs and be selected for Article III judgeships in a Democratic administration, this is a really critical point:
Two years ago, a 5-4 SCOTUS decided Epic Systems, trashing employees' rights to bring collective actions. Here's how Justice Ginsburg described the impact in her dissent.
And who was the employer's counsel of record who made these terrible arguments? Neal Katyal.
/3 pic.twitter.com/RSAZqdpIDZ— Max Kennerly (@MaxKennerly) December 5, 2020
I've just scratched the surface. Go to Katyal's bio at his firm: the latest news for him is blowing up a settlement for violations of the Fair and Accurate Credit Transactions Act.
If you want an AG or SCOTUS justice to hold bad people and companies accountable, he ain't it. pic.twitter.com/RLtR6q13CQ— Max Kennerly (@MaxKennerly) December 5, 2020
“Everyone is entitled to a criminal defense” is, at least, a real principle. As this truth about the Sixth Amendment morphs into “no elite lawyer can be criticized for doing anything that isn’t literally illegal” it can be pushed well beyond the bounds of parody — i.e. “you have the inalienable right to keep your barely-work dorm R.A. job on top of your elite tenured professorship while being Harvey Weinstein’s ninth high-priced attorney” — but at least there is a real principle there a few steps back. In criminal defense sometimes upholding genuine liberal principles requires defending bad people.
What Katyal is doing, though, has nothing to do with that. He’s not just defending bad actors who are doing bad things, he’s actively trying to make the controlling legal doctrines worse. He’s not only defending bad corporate clients, he’s doing so with highly pernicious and reactionary arguments. Not only defending but trying to further expand the Roberts Court’s absurd re-writing of the Federal Arbitration Act to diminish the rights of consumers should be as disqualifying as filing an amicus brief for the plaintiff in Shelby County v. Holder. An already extremely rich man who has both an elite tenured faculty position and a BigLaw partnership, he can literally choose any client he wants while living a life of luxury unimaginable to the vast majority of Americans. That this is what he wants to do with his time and talent tells you all you need to know.
Katyal should not get a job in a Democratic administration, first of all, because this behavior should not be incentivized. But he should also not get a job because you’d be foolish to trust someone who tells lies about Republican Supreme Court nominees in the hope that they will work with him to make the law more anti-consumer and anti-employee on behalf of his unsavory but well-paying corporate clients. This is not a difficult question.