Jurisprudence

Why Is Lisa Blatt Endorsing Brett Kavanaugh?

Because rich clients trump justice.

Brett Kavanaugh.
Brett Kavanaugh.
Photo illustration by Slate. Photo by Alex Wroblewski/Getty Images.

On Tuesday, Lisa Blatt—a self-described “liberal feminist lawyer”—will endorse the nomination of Brett Kavanaugh to the Supreme Court before the Senate Judiciary Committee. Blatt is a SCOTUS superstar who has argued 35 cases before the court, more than any other woman. She has won 32 of them, an astonishing record for any advocate. Blatt clerked for Justice Ruth Bader Ginsburg and frequently supports progressive litigation pro bono; in March, she filed an influential (though ultimately unsuccessful) amicus brief in opposition to Donald Trump’s travel ban. Yet she is now backing the nomination of Kavanaugh, who will surely rule against her in virtually every liberal case she brings to the court. Why?

The answer is simple: Blatt works at Arnold and Porter, an elite law firm that often represents wealthy corporations. To its credit, the firm funds pro bono ventures that permit its luminaries, like Blatt, to pursue progressive causes. But it will always, always value capital over justice. The needs of its paying clients will take priority over the interests of its pro bono practice every single time. That is the cardinal rule of Big Law, and it should come as no surprise that Blatt is playing this nomination by the books.

I do not mean to suggest that firms like Arnold and Porter are cynical or unscrupulous because they represent large corporations while simultaneously defending the rights of the powerless. It is entirely noble for the firm to devote a substantial portion of its immense funds to social justice groups and indigent defendants. Credit where it’s due: A&P attorneys have represented death row inmates and victims of discrimination in employment, education, and housing. Blatt herself argued a landmark case that persuaded a federal appeals court to prohibit peremptory challenges to gay jurors on the basis of their sexual orientation. The firm encourages its lawyers to devote  15 percent of their time to pro bono work, and the country is a better place for it.

But these cases aren’t the bread and butter of A&P’s practice. The firm makes its money by representing corporations like BP (which A&P defended following the Deepwater Horizon spill), Exxon Mobil, Monsanto, Novartis, Pfizer, and Philip Morris. (Blatt’s own attorney profile boasts that she helped to overturned the “reinstatement of $10 billion verdict against client Philip Morris in a ‘lights’ cigarette case.”) A&P also represents businesses rather than workers in labor disputes and specializes in breaking up class actions.

Kavanaugh has a long history of siding with businesses like these over consumers, employees, and the environment. And, as HuffPost’s Amanda Terkel notes, that’s good news for Blatt. While she may get (well-deserved) liberal plaudits for her work on cases like the travel ban, Blatt is better known in the elite world of appellate practice for her vigorous representation of these moneyed interests. Kavanaugh will rule against her when she represents death row inmates, LGBTQ people, abortion providers, and racial minorities. But these aren’t the cases that keep the bonuses flowing at A&P. And when she represents those clients before Kavanaugh’s court—the BPs and Philip Morrises of the world—she’ll have a reliable fifth vote in her favor.

Thus, for Blatt, it is perfectly rational to sing Kavanaugh’s praises at his confirmation hearing. In her Politico article supporting him, Blatt does express a tinge of anxiety, as the “mother of a teenage girl,” that he might overturn Roe v. Wade. (He will.) But she needn’t fret too much. Even after Kavanaugh overturns Roe, people who are wealthy enough will still have the means to obtain a safe abortion in most cases. It will be lower-income women who are forced to give birth against their will or driven to the black market at the possible risk of arrest. And when prosecutors target poor women who terminate their own pregnancies, Blatt can file an amicus brief on their behalf, then lose thanks to Kavanaugh’s vote.

Blatt’s testimony will likely fall along the same lines as Neal Katyal’s endorsement of Neil Gorsuch during last year’s confirmation hearings. Katyal, a partner at Hogan Lovells, alleged that Gorsuch was a principled jurist devoted to “fairness,” “decency,” and “the rule of law.” Fourteen months after he was confirmed, Gorsuch cast the decisive fifth vote upholding Trump’s travel ban against a challenge brought by … Neal Katyal.

A devastating rebuke to his misguided testimony? Not really. I’m sure Katyal was genuinely disappointed by the outcome in the travel ban case. But a month earlier, Gorsuch authored the opinion in Epic Systems v. Lewis, a 5–4 ruling that allowed employers to strip their workers of the right to sue collectively. The decision was a crushing blow to labor rights that kneecapped a key New Deal reform, insulating employers who engage in wage theft from class-action lawsuits. Who represented employers in their appeal to the Supreme Court? Neal Katyal. 2018 may have been a terrible year for Muslim litigants at SCOTUS, but it was a great year for Hogan Lovells.

When several people, including me, critiqued Katyal’s involvement in Epic Systems, Sean Marotta, a senior associate at Hogan Lovells, fired back. “Just as progressives are rightly outraged when conservatives suggest that public defenders contribute to crime,” he declared, “the same principles apply in the other direction. If you don’t like Epic, fine. But that’s no reason to go after my colleagues.” Does Marotta truly think that criticizing a corporate lawyer for defending labor exploitation is just as bad as condemning a criminal defense attorney for fulfilling his duties under the Sixth Amendment? Probably. This dogma is what allows extremely smart and fundamentally decent people like Marotta, Katyal, and Blatt to rationalize their (lucrative) defense of distasteful corporate abuse and support judges who will crush their pro bono clients.

Many progressive advocates are furious that Blatt would stand up for a Supreme Court nominee who will undoubtedly impose his conservative ideology on the country. Their rage is understandable but misguided. Blatt was never really on their team, and they were naïve for assuming otherwise. When she testifies under the klieg lights on Tuesday, she will not be betraying her beliefs. She will simply be representing the best interests of those clients who matter the most.