pageok
pageok
pageok
Kagan, Sullivan Reported to Be Considered for Obama SG Slot:
Bloomberg reports, via Leiter's Law Reports:
  The first female deans of the Harvard and Stanford law schools are the top candidates to serve as Barack Obama's voice at the U.S. Supreme Court, according to people familiar with the selection process.
  Harvard Law School Dean Elena Kagan, 48, and former Stanford Law School Dean Kathleen Sullivan, 53, are the two leading contenders for the position of solicitor general, a position informally known as the "tenth justice." . . .
  Kagan became a top candidate for solicitor general after being passed over for deputy attorney general, a slot set to go to Washington lawyer David Ogden, people familiar with the selection process said.
  I don't know either Kagan or Sullivan well, but from what I know I would think either would make an excellent Solicitor General. Sullivan has more litigation experience: The article notes that Sullivan has four prior Supreme Court arguments, while Kagan has had none. Indeed, if the Westlaw ALLFEDS database is correct, Kagan has never had her name on a Supreme Court merits brief, and the last federal appellate brief with her name on it was in 1990 when she was an associate at Williams & Connolly.

  At the same time, my sense is that this relative lack of practical experience is not so unusual when an Administration picks an academic as SG. Very few law professors have notable litigation experience, and those that do usually have most of their experience from the period before they became academics. When Harvard Law School Professor Charles Fried was picked in the Reagan Administration, for example, his first argument to any court ever was as Solicitor General. [UPDATE: Aptly named commenter Corrections points out that Fried had his first argument earlier in the year he became SG, when he was briefly a Deputy SG.] And even when an Administration picks a practitioner, a lack of Supreme Court argument experience is not so uncommon: My recollection is that Seth Waxman had never argued before the Court when he was named SG in 1997. In any event, it will be very interesting to find out who Obama selects.
mls (www):
Is it important that the SG be an excellent oral advocate? Seth Waxman may have never argued before Court before he became SG, but he was an extremely gifted advocate.
1.3.2009 6:17pm
Patrick216:
I'd also point out that Sullivan is a con law expert whereas Kagan is an admin law expert. It strikes me that the person with the con law background might be better prepared for the SG role.

I graduated from Harvard in 2004, before Kagan was able to implement most of her changes (the new curriculum, the mandatory participation in liberal interest groups - erm - "pro bono," and the elimination of grades) to the law school. How have current students and more recent graduates reacted to the changes? Has she been adjudged a success?
1.3.2009 6:25pm
MarkField (mail):
It's interesting to me that there's a flourishing bar of SCOTUS advocates who convince practitioners all over the country that they should associate in an experienced advocate for a case, yet it's not considered essential for the SG to have such experience. One way or the other, I suspect there's a lesson here.
1.3.2009 6:36pm
Allan (mail):
I suspect there's a lesson here.

Maybe more than one.
1.3.2009 7:08pm
Corrections:
Interesting post, but I believe your point re: Professor Fried is incorrect. Prior to his term as Solicitor General, Fried was Deputy Solicitor General under Rex Lee. In that capacity he argued Pattern Makers v. NLRB, 473 U. S. 95 (1985) and Tony &Susan Alamo Foundation v. Sec'y Of Labor, 471 U.S. 290 (1985).
1.3.2009 7:13pm
Bill Dyer (mail) (www):
One can argue how relevant prior appellate advocacy experience is to the SG post. (I tend to agree that it's relevant, and ought to remain so, but I can certainly imagine a Solicitor General's office in which essentially all of the oral advocacy in particular is delegated.) But shouldn't all appellate advocacy be considered, not just SCOTUS advocacy? Or do you think there's that much that's unique to advocacy at the Supreme Court level, such that voluminous experience briefing and/or arguing at before the various federal Courts of Appeals or state appellate courts doesn't much matter?
1.3.2009 7:23pm
Bill Dyer (mail) (www):
Let me re-phrase that slightly, because I think Prof. Kerr's reference to Dean Kagan's last prior federal appellate court brief implies his agreement that appellate advocacy other than before the SCOTUS is still important. As amended, my question is, I suppose, this: How important is SCOTUS experience specifically for a Solicitor General?
1.3.2009 7:26pm
barkeep:
Will Sullivan's failing the California bar her first try prove a hindrance to the appointment?
1.3.2009 7:34pm
David M. Nieporent (www):
It's interesting to me that there's a flourishing bar of SCOTUS advocates who convince practitioners all over the country that they should associate in an experienced advocate for a case, yet it's not considered essential for the SG to have such experience. One way or the other, I suspect there's a lesson here.
That SG's get paid, win or lose?

Less snarkily, I think SG's have plenty of SCOTUS-experienced staff to assist them; many of those practitioners don't.
1.3.2009 8:01pm
Mahan Atma (mail):
<blockquote>"Is it important that the SG be an excellent oral advocate?"</blockquote>

My understanding is that litigating before the Supreme Court is not actually the SG's most important job.

More important is the control the SG exercises over appeals taken by nearly everyone else in the Executive Banch
1.3.2009 8:10pm
ll (mail):
I wouldn't call appellate advocacy "litigation," but maybe that's just me. It seems to be me trial court is litigation, and that is quite different from any sort of appellate advocacy, especially at the Supreme Court, and including moot court. So I don't see what litigation experience necessarily has to do with being a good appellate advocate.
1.3.2009 11:51pm
Brian G (mail) (www):
If Sullivan is nominated, she'll hear all about failing the bar exam in California, which will make her look real bad to the public.

I know she failed because she did not take it seriously, and because she probably thought that she would just breeze through with her experience and knowledge.

Many of us here have taken the bar exam and know full well that its relation to the actual practice of law is minimal.
1.3.2009 11:53pm
barkeep:
I wouldn't call appellate advocacy "litigation," but maybe that's just me. It seems to be me trial court is litigation, and that is quite different from any sort of appellate advocacy, especially at the Supreme Court, and including moot court. So I don't see what litigation experience necessarily has to do with being a good appellate advocate.

I would tend to agree- it's probably just you.

If Sullivan is nominated, she'll hear all about failing the bar exam in California, which will make her look real bad to the public.

I know she failed because she did not take it seriously, and because she probably thought that she would just breeze through with her experience and knowledge.

Many of us here have taken the bar exam and know full well that its relation to the actual practice of law is minimal.


I'd imagine that SOME opposition senator is going to ask a few questions about it-- it's just too obvious an issue. I don't know enough about her preparations to know why she failed. Probably having not taken a law school-style exam in 20+ years didn't help her a lot.
1.4.2009 12:29am
john dickinson (mail):
I think Administrative Law is probably far more relevant to the Solicitor General position than First Amendment Law, especially for the Obama administration.
1.4.2009 2:33am
Prosecutorial Indiscretion:
Kagan would make an excellent SG, especially if that position were a stepping stone on her way to the Court. I am sure various positions she takes and decisions she makes will be wrong, or at least leave me disappointed, but that's what happens when the other side wins the election. The best people on the losing side can hope for is someone who's brilliant, reasonable, and fair, and I expect Dean Kagan would be all three.
1.4.2009 5:15am
AEDPA:
Seth Waxman, like Charles Fried (and Paul Clement), had been Principal Deputy Solicitor General for some time before becoming SG, and he argued before the Court in that capacity. See Walters v. Metro. Educ. Enters., 519 U.S. 202 (1997); United States v. Lanier, 520 U.S. 259 (1997); Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997); Abrams v. Johnson, 521 U.S. 74 (1997).
1.4.2009 9:40am
Mahan Atma (mail):
"I wouldn't call appellate advocacy "litigation," but maybe that's just me."


It's just you. The Supreme Court itself refers to the parties before it as "litigants". For example:

"Litigants in this Court pressing issues of the utmost importance to the Nation are allowed only a fixed time for oral debate and a maximum number of pages for written argument."


Davis v. Federal Election Com'n, 128 S.Ct. 2759, 2779 (2008).
1.4.2009 1:07pm
Elmore:

I wouldn't call appellate advocacy "litigation," but maybe that's just me. It seems to be me trial court is litigation, and that is quite different from any sort of appellate advocacy, especially at the Supreme Court, and including moot court. So I don't see what litigation experience necessarily has to do with being a good appellate advocate.


Among many practitioners, the term "litigation" is limited to what goes on in trial courts. I have always thought this limitation both arbitrary and incorrect. Appellate litigation and trial litigation, as you point out, are very different types of practice, requiring different skill sets. But they're both "litigation."
1.4.2009 1:28pm
Kedar Bhatia (mail) (www):
Waxman's first argument before the court was in 1992, five years before he was appointed SG. He argued in <em>Winthrow v. Williams</em> against John Roberts.
1.4.2009 2:22pm
Roy Englert:
Seth Waxman argued and won Withrow v. Williams, 507 U.S. 680 (1993), while he was still with Miller Cassidy and before he entered government service. Ironically, he argued the case on November 3, 1992, which I believe is the very day Bill Clinton (who would later appoint Seth to be SG) was elected President. And one of the two counsel arguing the other side of the case was Deputy Solicitor General John Roberts, now of course the Chief Justice of the United States.
1.4.2009 2:25pm
Occasional Lurker:
Of course litigation includes appeals. Honestly, I don't know any practicing lawyers who think of appellate litigation as "not litigation." You've got a client in an adversary proceeding before a court -- what more do you want?

True, most cases aren't worth appealing. But in complex litigation you may be up to the court of appeals and back to the trial court, discovery disputes, challenging summary judgment motions, etc. Simply put, litigation is about your case, wherever it is.

I usually have an experienced appellate litigator on my team or at least waiting in the wings very early. IMHO you are thinking about the appellate aspects of the litigation as an integral part of the overall litigation. And you may of course conclude that it is not in the cards in your case. But you think about it, and if you yourself are not an appellate specialist you should have one on call.
1.4.2009 2:31pm
Jack Black (mail):

I'd also point out that Sullivan is a con law expert whereas Kagan is an admin law expert. It strikes me that the person with the con law background might be better prepared for the SG role.



Administrative law is arguably more important than constitutional law, as a civil rights agenda would be pushed through the DOJ, not the SG's office. Indisputably, administrative law is constitutional law, but drier, structural constitutional law. One could argue the nation would be better off with an SG steeped in the structural Constitution rather than one steeped in individual rights theory. Indeed, one could argue that an expert on federal courts and complex litigation might be better than an expert on constitutional law or administrative law. Given that administrative law is closer to federal courts and complex litigation than constitutional law, of the two Kagan would seem the better pick. Given that her nomination for a federal judgeship was stalled, it seems she is more deserving than someone who flunked the California bar.
1.4.2009 4:30pm
Edward A. Hoffman (mail):
Brian G. wrote (of Kathleen Sullivan):
I know she failed because she did not take it seriously, and because she probably thought that she would just breeze through with her experience and knowledge.
Prof. Sullivan took the bar exam shortly after she became head of the newly-formed appellate practice group at Quinn Emanuel. Building a new department at a major law firm does not leave much time to study for the bar exam -- especially for someone who is also a full-time professor at a top law school.

I'm sure she took the process seriously, but there are only so many hours in the day. The exam covers a number of subjects (wills and estates, community property, commercial law, etc.) which Sullivan probably hadn't dealt with much during her career. Her memories from law school 20+ years earlier could not have been very fresh, and she had no time to take a bar review class. Failing the exam under those circumstances must have embarrassed her, but I'll bet that many top legal scholars would have done no better in her shoes.

(In the interests of full disclosure, I note that Sullivan was one of my professors when I was in law school.)
1.4.2009 5:25pm
dcuser (mail):
Sullivan's California bar issue is a distraction -- it'd be a fun talking point for Rush Limbaugh, but nobody coming from any honest perspective would hold it against her. She had passed both the Massachusetts and NY bars years earlier (on her first try). Then, when she decided to take the California bar, she did so as a busy professional -- so she presumably didn't devote the kind of study to it that law students devote to their first bar exams. She almost certainly wishes she'd studied harder that time -- but that test result signifies only her busy schedule, not her legal abilities. (The NY and Mass results -- coupled with her 20 year career in the meantime -- show that the California result was an abberation.)

As for who the best SG would be, I think it's worth noting that both women are Democratic team players, who are nonetheless popular on their home campuses among professors of the opposite ideological stripe. Sullivan has more litigating experience, which has obvious relevance for the position. On the other hand, Kagan has more experience dealing with the unique institutional concerns of the federal government -- a very significant issue for the SG, who must maintain a longterm litigating strategy, and must negotiate battles among various agency clients.
1.4.2009 5:34pm
Mahan Atma (mail):
"On the other hand, Kagan has more experience dealing with the unique institutional concerns of the federal government -- a very significant issue for the SG, who must maintain a longterm litigating strategy, and must negotiate battles among various agency clients."


Exactly. To repeat my earlier point, the SG's most important job is not its Supreme Court practice, but the other 90% of the work.

The SG coordinates the entire appeals process. Any federal litigant (with a few minor exceptions) who wants to take an appeal has to get approval from the SG's office. All the agencies get to weigh in, and the SG makes the decision. That requires an extraordinary degree of strategic insight and a deep understanding of how each agency functions vis a vis the others.
1.4.2009 6:04pm
Dilan Esper (mail) (www):
Less snarkily, I think SG's have plenty of SCOTUS-experienced staff to assist them; many of those practitioners don't.

I suspect that some level of Supreme Court experience, like any other type of experience, is probably helpful when appearing before the Court.

But I might add that Mark Field's comment was a little bit off when he referred to what these Supreme Court boutiques do with respect to practitioners. They also contact clients (who are often not lawyers) and their pitch to clients is as much about the fact that the members of the firm were former Supreme Court clerks who have some sort of unstated inside pull with the justices.

And there's no evidence whatsoever that having someone who regularly practices before the Court or was a former clerk argue your case has THAT sort of effect on your chances to win the case. At best, you get a person who has a slightly better chance because of his or her familiarity with what the Court wants in the briefs and arguments. The question is, is that really worth the extra money?

(I should also note that there's a kind of cliquish, clubbish mentality to this. Oral argument isn't very important, where you really want your exprienced Supreme Court advocate is on your brief. But of course, what these guys want is all the glory of arguing the case before the Court.)
1.4.2009 6:58pm
Simon Kardner (mail):

Kagan, Elena &David Barron. "Chevron's Nondelegation Doctrine," 2001 Supreme Court Review 201 (2001).



If Kagan takes the non-delegation doctrine seriously enough to read it into Chevron, then it sounds like she would be a great pick.
1.4.2009 7:52pm
Samual:
"They also contact clients (who are often not lawyers) and their pitch to clients . . ."

They contact clients, who are already represented, directly? Is that legal?
1.4.2009 8:06pm
CVMe:
An experienced Supreme Court advocate is immensely useful to have when you are in the Supreme Court. How could it not be useful to have a practitioner who spends most of his or her time thinking about the best ways to persuade the nine individuals you are now seeking to persuade? How could it not be useful to have the views of a person who reads everything those individuals write? There's nothing special about reading every Supreme Court case. You could do it, but likely you don't because you don't need to and because there are only so many hours in the day.

You could well be writing a brief about statutory interpretation where the meaning of a particular word is imporant, without realizing that members of the Court have written about that word in the recent past. You might find it if it happens to be in a case related to yours, or in a decision you happened to read, or is an easily-searchable term. But it could well be a fairly generic term that would be impossible to search for unless you had some prior knowledge to go on. A Supreme Court specialist might remember that it was Justice Scalia that talked about that word in an employment case, and you might then be able to find and cite that case, and that word might be the reason Justice Scalia votes for you and not the other side, because he wouldn't want to be inconsistent with his own prior opinion.

And though that won't happen in every case, there are countless small ways that familiarity with the Court and the Justices matters.


"their pitch to clients is as much about the fact that the members of the firm were former Supreme Court clerks who have some sort of unstated inside pull with the justices."



I seriously doubt that. Former clerks do have inside knowledge about how at least one of the Justices thinks, but no serious Supreme Court practitioner would imply he or she has "inside pull." One important thing an experienced Supreme Court practitioner can get you is a presumption of credibility. Members of the Court get to know certain individuals and firms (and it doesn't hurt if you worked for them as a law clerk), and may well give a closer look to that individual's assertion of a circuit split, for instance, when the opposing side (claiming no split) is not someone they know.
1.4.2009 10:56pm
David M. Nieporent (www):
They contact clients, who are already represented, directly? Is that legal?
Contrary to what some lawyers think, generally speaking, yes. The only represented parties a lawyer absolutely can't contact are those whose interests are adverse to those of their own clients.
1.5.2009 2:48am
Plony ben Plony:
If you were a client and had a case before SCOTUS, would you hire someone to represent you who had never argued before it?
1.5.2009 10:59am
Dilan Esper (mail) (www):
They contact clients, who are already represented, directly? Is that legal?

What David Nieperont said. It's perfectly legal as long as you aren't representing someone adverse to the client.

As for what CV said:

You get many, many things wrong.

1. I can assure you that when talking to non-lawyer prospective clients, some Supreme Court boutique practitioners do indeed imply that their "inside knowledge" of the justices will improve the chances of a favorable result.

2. I don't deny that having someone with Supreme Court experience could be of some value. But you can also find out what members of the Court have said previously by looking it up. Further, you are ignoring the flip side, which is that the counsel who worked on the case below knows the record better. And if you actually ask Supreme Court justices rather than relying on the sales pitches of Supreme Court boutiques, they will tell you that they are usually able to figure out the law themselves and what they really need from lawyers is a knowledge of the record that they can rely upon. (And again, since that is the concern, you if anything want your Supreme Court specialist to help on the brief and NOT to orally argue the case. But of course the specialists don't like that arrangement, they want the glory of the oral argument.)

3. Your statement that the Court will give greater consideration to arguments from certain private firms is (a) unsupported-- you'd need to do a study about whether equivalently valid cert petitions were more likely to be granted depending on the firm name; (b) offensive-- it implies that the justices and clerks don't treat cases equally or give them equal consideration; (c) contradicted by the statements of the justices themselves; and (d) contradicted by the many, many cases that the Court takes every year that involve lawyers without a lot of experience practicing before the Court.

Indeed, I wonder what the justices who employed you and your colleagues would say if you said in their presence that they are more likely to rule in favor of clients represented by certain firms and that they discriminate against firms with less experience before the Court. I suspect that the reaction would be less than favorable.
1.5.2009 12:41pm
CVMe:
Dilan:

1. Compare the following:

"their pitch to clients is as much about the fact that the members of the firm were former Supreme Court clerks who have some sort of unstated inside pull with the justices."

and

"Supreme Court boutique practitioners do indeed imply that their "inside knowledge" of the justices will improve the chances of a favorable result."

"Inside pull" is not the same as "inside knowledge." I doubt that Supreme Court practitioners imply the former, since it is directly contrary to the rules of professional responsibility, and few lawyers at that level are willing to risk their license for any given case. Those who imply that the latter can make a difference are right.

2. As for the Justices' view of whether an experienced advocate matters at argument, you might check out what the Chief Justice had to say about it in his article, Oral Advocacy and the Re-emergence of a Supreme Court Bar, 30 J. S.Ct. Hist. 69 (2005). Then-D.C. Circuit Judge Roberts agreed with Justice Harlan's view that "[Y]our oral argument on appeal is perhaps the most effective weapon you have got." You might also check out the argument in Grutter v. Bollinger, during which the Justices referred to a particular amicus brief as "the Carter Phillips brief." You could also check out the article by Richard Lazarus, "Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar."


3. (a) See the articles mentioned above if you want proof that the Supreme Court bar has had increasing success at getting cert. petitions granted. (b) My observation that cert. petitions with the names of firms and lawyers well known to the Court can get the attention of the pool clerk is just reflection of the large number of petitions that the clerks see, most of which are not meritorious. The clerks strive to give equal consideration to each brief, but knowing that the name is an experienced practitioner might change your expectation before even opening the brief from "probably another deny" to "let's see what he or she is pitching this time." And by the way, the former Supreme Court clerks were the ones who had to go through all those petitions -- you think they don't know what gets a pool clerk's attention? (d) I never said it's the only way to get a case granted. Again see the articles above. Experienced practitioners have been very successful at getting their petitions granted.

"Indeed, I wonder what the justices who employed you and your colleagues would say if you said in their presence [something I didn't say and don't believe is true]." This merits no response.
1.5.2009 2:56pm
Dilan Esper (mail) (www):
As for the Justices' view of whether an experienced advocate matters at argument, you might check out what the Chief Justice had to say about it in his article, Oral Advocacy and the Re-emergence of a Supreme Court Bar, 30 J. S.Ct. Hist. 69 (2005). Then-D.C. Circuit Judge Roberts agreed with Justice Harlan's view that "[Y]our oral argument on appeal is perhaps the most effective weapon you have got." You might also check out the argument in Grutter v. Bollinger, during which the Justices referred to a particular amicus brief as "the Carter Phillips brief." You could also check out the article by Richard Lazarus, "Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar."

I read every Supreme Court case that comes down and follow many of the oral arguments. Every year, numerous advocates have bad oral arguments and win their cases, and numerous other advocates have good oral arguments and lose them.

Chief Justice Rehnquist, who was on the Court far longer than Roberts, repeatedly said that oral argument at most assists in 10 percent of the cases and probably far less. And he's right, especially since in the vast majority of the cases, the votes of the justices are clear and predictable based on the questions asked at oral argument, i.e., they have already made up their minds based on the briefs.

Experienced practitioners have been very successful at getting their petitions granted.

This is just wrong. The vast, vast majority of petitions filed by experienced practitioners are denied, just like everyone else's.

"Indeed, I wonder what the justices who employed you and your colleagues would say if you said in their presence [something I didn't say and don't believe is true]." This merits no response.

Because you don't have one. Seriously, I dare you and your colleages to start making the claim openly in front of Supreme Court justices that they favor litigants represented by experienced Supreme Court firms. Go on, do it. Let's find out if they agree with you.

Of course, you'd never do that, because you know what the reaction would be and it wouldn't be pretty.

One other point-- even if you were right about cert. grants, AT MOST, that merits bringing someone in to help file your cert. petition. What the boutiques want is the oral argument, and who wouldn't? It's fun and a big ego trip to argue cases there. But you aren't providing clients any added value and you are depriving local lawyers a once-in-a-lifetime experience.
1.5.2009 6:50pm
Dilan Esper (mail) (www):
I guess I should add one more thing. If you know of even a single Supreme Court clerk who has ever considered the identity of the law firm in determining whether to recommend a grant of a cert. petition, that person should be identified and subject to severe sanction, including disbarment and prosecution. And if you know of any Supreme Court justice who encourages or tolerates such a practice, that justice should be reported to the Senate Judiciary Committee for impeachment proceedings.

Such favoritism is absolutely illegal. And it is shameful that any member of the bar would make a sales pitch to a prospective client that he or she could be able to take advantage of judicial bias to obtain a result.
1.5.2009 6:54pm
CVMe:
Dilan,

If you can't see the difference between simply favoring one side because it's someone you know, and having higher expectations of someone who has shown him or herself to be credible in the past, then I cannot help you. If you're interested in pursuing disbarment and prosecution, here you will find former clerks who very likely were influenced, without conscious discrimination or favoritism, by the names on briefs.

Your point seems to be that lawyers who handled the case below should get their once in a lifetime opportunity to argue because oral argument doesn't matter. Rehnquist may have thought that it mattered in only 10% (though in the Grutter argument he called Maureen Mahoney "Maureen"), but the Chief now thinks it's vitally important. In his article cited above, Chief Justice Roberts talks about how oral argument is the time when the case crystalizes in his mind and when he gets answers to questions that have been troubling him about the case.

If I were the client, I would not want to lose my case so my attorney could have a "once in a lifetime experience." As much as you rail against the "boutiques," for the Supreme Court regulars it's not a once in a lifetime experience. It's a job that needs to be done for the client, and it's a hard job that takes tremendous preparation, and must be done extremely well not only for the client, but also for the advocate's reputation. Yes, they want to do the argument, but you're leaving out that many (if not most) of the Supreme Court regulars you decry do appear on the briefs in a large number of cases without arguing. Those same people do plenty of pro bono cases or and cases for nominal or no fees. Usually it is the lawyer below who really is putting his own need for "glory" above the needs of the client. If I had the choice of Seth Waxman or me to argue my case, I'd take Seth Waxman every time, no matter how well I "know the record."

I take it you did not bother to look at the articles I cited, so here are some statistics: In 1993, a study found that 22% of petitions by experienced Supreme Court counsel were granted, while only 6% of others were granted. Kevin T. McGuire, The Supreme Court Bar: Legal Elites in the Washington Community 197-98 (U. Press of Va. 1993). The same author later determined that the side with more former Supreme Court clerks preparing and arguing the case is more likely to win. Kevin T. McGuire, Lobbyists, Revolving Doors and the U.S. Supreme Court, 16 J.L. &Pol. 113, 130 (2000). In another article, 88% of former clerks admitted that they paid more attention to amicus briefs written by better-known attorneys. Kelly J. Lynch, Best Friends? Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. &Pol. 33, 44-56 (2004).
1.6.2009 9:53am
Dilan Esper (mail) (www):
If you can't see the difference between simply favoring one side because it's someone you know, and having higher expectations of someone who has shown him or herself to be credible in the past, then I cannot help you.

The Supreme Court has a bunch of clerks and some of the smartest judges in the world. They can read a record and they can read caselaw. Briefs help them, but cases are individually researched.

They shouldn't be relying on the "credibility" of any law firm.

Further, I can't speak too much about this aspect of Supreme Court practice, but I can say that at other levels of the process, relying on a law firm's name for any sort of credibility determination is EXTREMELY treacherous. Even big name firms have on many occasions misrepresented facts or the law when they felt it necessary to win a case. Good judges check things out, and I am sure that the Supreme Court is not an exception.

Finally, as a matter of principle, even if there were some valid credibility inference to be drawn from the name of a firm on a brief, and even assuming that the Supreme Court actually draws that inference (something I don't really buy), I do not, in the end, conclude this is different from simple bias or favoritism. The reason is it means that someone is winning or losing their case because of who they hired rather than the merits of their claim. Indeed, though I have never worked at the Supreme Court, it would not surprise me if judges there make a point of saying to their clerks that they should NOT consider who is making the argument when determining whether it is persuasive. That the Court's duty is to consider EVERY valid argument, no matter where it comes from.

Indeed, there are cases that are part of the Court's lore, like Gideon v. Wainwright, where poorly written pro se petitions resulted in monumental decisions. Obviously, the vast, vast majority of pro se petitions are complete BS. We know this. But just as obviously, someone reads them, and if there's a good argument on an issue that interests the Court, they can be granted too? Or is it your claim that the justices tell the clerks they can basically ignore them because only the Supreme Court boutiques make interesting arguments that are worth their time?

though in the Grutter argument he called Maureen Mahoney "Maureen"

This is a strange claim. I know a number of judges who address me in familial terms when I argue cases. And I've lost lots of those arguments. And when I've won, it's usually because I had the better argument on the merits.

Do you really think Rehnquist was going to vote to uphold the affirmative action program in Grutter if he had hated the guts of the lawyer who argued for the student? Or if he simply didn't know that lawyer? Come on-- that vote was decided 25 years before the case came to the Court! (See DeFunis v. Overgaard, Regents v. Baake.)

In his article cited above, Chief Justice Roberts talks about how oral argument is the time when the case crystalizes in his mind and when he gets answers to questions that have been troubling him about the case.

I can accurately predict Roberts' vote more than 90 percent of the time in Supreme Court cases. He himself made a lot of money making oral arguments before the Court. Of course he was going to claim (BEFORE coming onto the Court) that oral argument was important. But if he doesn't decide his cases before oral argument, he has a strange way of showing it with his entirely predictable results!

If I had the choice of Seth Waxman or me to argue my case, I'd take Seth Waxman every time, no matter how well I "know the record."

And Seth Waxman loses lots of cases he orally argues before the Supreme Court. Not because he isn't a great advocate-- he is-- but because his oral arguments DON'T MATTER MOST OF THE TIME!

Also, you don't always get Seth Waxman. And a lot of the folks in the Supreme Court boutiques DO get fouled up on basic issues in the record. Read oral argument transcripts. It happens all the time.

I take it you did not bother to look at the articles I cited, so here are some statistics: In 1993, a study found that 22% of petitions by experienced Supreme Court counsel were granted, while only 6% of others were granted.

There's a huge selection bias there. You'd need to study EQUALLY VALID petitions. In other words, show that petitions got granted to experienced Supreme Court counsel WHERE OTHER PETITIONS RAISING THE EXACT SAME ISSUE HAD PREVIOUSLY BEEN DENIED.

And you know what? That study doesn't exist. Because you are just as likely to get the cert. grant if you raise the same issue but you aren't represented by a Supreme Court boutique.

The same author later determined that the side with more former Supreme Court clerks preparing and arguing the case is more likely to win.

That's absolutely irrelevant to the issue of who is orally arguing the case. As I said, I don't deny that there is some value to having experienced Supreme Court advocates working on the case.

Show me the study that shows that having an experienced Supreme Court advocate ORALLY ARGUE increases your chances of winning the case. Again, that study doesn't exist, because it's not true.
1.6.2009 4:08pm
Sanford Hausler (mail):
First, I think experience in Supreme Court advocacy is valuable. While oral argument does not always win the day, and often has no effect, it can lose the day, as many judges have recognized. And, of course, Supreme Court experts also do the briefing, which is always valuable, especially at the cert. petition stage.

Having said that, it should be recognized that there is a pretty large body of literature on how an advocate should prepare for a Supreme Court case, so a good lawyer should not necessarily role over and turn over his case. I mean every Supreme Court advocate has had his first Supreme Court argument. Even Seth Waxman. So while having an expert on board might help, not having one doesn't mean the game is lost, even if the other side has Ted Olson representing it. Even Ted loses . . . and not only to giants of the Supreme Court bar.

So while it is surprising that Elana Kagan, a brilliant scholar with no appeallate (let alone Supreme Court) experience, has been chosen as SG, I have a feeling she will pick up things quickly. She will have a strong staff guiding her on the technical points and her native intelligence won't hurt either.
1.13.2009 9:52am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.