Arguing Before the High Court

You’re case has been granted certiorari and you are preparing for your first oral argument in front of the nine justices of the highest court in the land. How do you prepare? Do you aim to convince the whole bench or the two or three justices you feel are most likely on the fence? Are you ready for their questions? Is there anything you don’t know about your case? As part of the 2010 Peter Jennings Project annual event, four seasoned litigators joined CNN legal analyst Jeffrey Toobin on stage for a lively discussion. The entire transcript can be accessed [here.] A few of the livelier moments are presented below.


ON SUPREME COURT ADVOCACY

Nina Pillard

“What are the hard questions? I try to put aside any ambition of answering them because I think, cognitively, it opens me to what’s hard. Appreciate the other side, let that come forth and write down all the hard questions. And then over time, systematically, then try to sit down and answer them all.And sometimes you come up with a whole bunch of answers and then you go forward in your moot court and invariably, there are questions that you didn’t think of; and my husband [Georgetown Law faculty member David Cole] was getting ready to argue his first case about 15 years ago and he had a moot court, and included in the moot court was a friend of Richard Lazarus’, a very low key, self effacing, but extremely talented Supreme Court lawyer who is also an alum of the SG’s [Solicitor General's] office, and he’s quite quiet and he doesn’t get in there and throw people around too much, but he had a question for Dave. Now, the case was about when Amtrak pulled a billboard contract for a giant billboard that was in Penn Station; they had basically contracted with this guy, saying that he could put up a billboard there, he pays the money, he comes out with the billboard and it’s a political critique of the Coors Beer Company. I don’t know if you guys know Penn Station, but when you come down into the station there’s this giant sort of panoramic billboard. So it goes up there and it’s a picture. This is back when there was a war in Central America and so it’s pictures of the Contras and of the peasants being bombed, and it says, ‘Coors, it’s the rights beer now,’ because there were allegations that Coors had supported the Contras in Central America. Of course, Amtrak just goes, ‘Oh my god! Get rid of it!’ and then the question is well, are there any First Amendment rights? Is Amtrak part of the government or not? And that’s the question that went up to the Supreme Court; and so David’s arguing on behalf of the First Amendment client and he says, yes, AMTRAK is government. And so this brilliant lawyer Richard Taranto at the moot court says, ‘You know this is just the kind of thing that Justice Scalia likes to ask, if it’s a governmental entity, were the members of the board of Amtrak constitutionally appointed under the Appointments Clause?’ Now, how many of you have ever heard of the Appointments Clause of the Constitution? Right, which was the way David felt. He was like, ‘Well—’ And Richard said, ‘Just go look—you might want to look that up,’ he says, in his very low key way. And so David goes and looks it up and has his two cents answer. Low and behold, on the day of argument, Justice Scalia looks down at David and says ‘Professor Cole, if this is really a governmental entity as you contend, it can’t be properly appointed under the Appointments Clause,’ thinking in this Justice Scalia way, aha! gotcha! But without missing a beat, David has his answer, moving right along. And forever after that, he has been completely devoted to Richard Taranto.”

Richard Lazarus

…what [Justice John Paul] Stevens does, is his questions are extraordinarily short, they’re to the point, and just—just like a little dagger; very insightful, very smart, and can often unravel a case more quickly than anything else. He is a remarkably intelligent person, and when he asks that question, be ready. Now, I’ll tell you that one of the worst ones I had in the Supreme Court was a Justice Stevens question, because I, like everyone else here, all you do to prepare, you don’t want to be surprised by any question. And I remember I had this case and Justice Stevens looked down at me and said, “Mr. Lazarus, how do you square your position with Section 512 of the statute?” And as he’s saying this, I’m sitting there thinking, “I have no idea what Section 512 of the statute is.” And you think very quickly up there, and so finally, by the time he was done, I just looked at him and said, “You mean Section 215?” and he said, “Yes,” and if he had said, “No,” I could have just sat down…He reversed the digits…but I love his questions. I like watching them, they’re very fair. He asks questions often of both sides, which a lot of the justices don’t do.

ON JUSTICE THOMAS’S SILENCE DURING ORAL ARGUMENT

Jeffrey Toobin

…this is the question everybody always asks, so since I am a cable news personality, and thus master of the obvious, why doesn’t Justice Thomas ask any questions?

Lisa Blatt

Well he’s got his answers. He says it’s not about the lawyer show and it’s all about the other justices are trying to show off and he doesn’t feel like he can—doesn’t want to partake in that, and a lot of people criticize that—

Jeffrey Toobin

But that means not one question since 2006?

Lisa Blatt

Well I actually think—I’ve watched hundreds upon hundreds upon hundreds of arguments. He and Justice Breyer are having a blast up there. He’s obviously paying attention—

Jeffrey Toobin

They’re always chatting.

Lisa Blatt

They’re chatting, they’re laughing, and it’s true, he gets this big—you know—leaning back, and that’s what a lot of people—you know—I don’t know what he’s doing, but he’s leaning back. But he’s clearly paying attention. I mean, he asks questions—you know in the cross burning case and in the EEOC Shell vs. Robinson case, and these were both cases about race, and—

Kenneth Starr

…and in my Mississippi higher education case, he asked the best questions at the oral argument.

Lisa Blatt

Was that a race case too?

Kenneth Starr

Yes, the desegregation case; and it was a very—

Lisa Blatt

I don’t like trashing him on that, because I think he pays attention and, like I said, he’s constantly leaning over and talking to Justice Breyer during the argument and they’re talking about the argument.

Kenneth Starr

Justice [William O.] Douglas didn’t ask questions.

Richard Lazarus

That’s right.

Kenneth Starr

Justice [William] Brennan rarely asked questions, but it’s just such a contrast in light of how active the other justices are.

Richard Lazarus

All of them.

Kenneth Starr

Yes, exactly.

Nina Pillard

Which makes it more striking because it—you know—as recently as 30 years ago or so, the whole bench was way more quiet. It’s a kind of a modern phenomenon, I think, in the history of the court.

Kenneth Starr

You could be asked no questions in oral argument 25 years ago.

Nina Pillard

Yes, people would come out and they would have—

Lisa Blatt

I think he chooses not to compete. I think he chooses not to compete. They’re all competing for the stage, they’re all competing to clever one up on the big cases, and I think he’s just opted out of the competition.

Richard Lazarus

But I still say that I think it’s unfortunate because I think he gets a reputation for not being engaged, and not being sort of as qualified as the others. That’s unfair, but it happens because of the context; because he doesn’t ask anything and then a lot of people come into the court, they see him; I think they’re disappointed; they’ve made wrong conclusions about his level of participation in it. So I actually do wish, as much as I know historically, a lot of justices who are very compassionate and very involved in the cases like Brennan or Douglas hardly ever ask questions, but still I wish he would ask questions.

Nina Pillard

And I wish the others would simmer down a little bit.

ON POLICY VERSUS LAW

Kenneth Starr

Very early on in my tenure in the Reagan Administration Justice department, Lyn Nofziger, political advisor to the President of the United States, beloved by the president, calls over to Bill Smith, the Attorney General of the United States, and says, “Hey, the U. S. attorney in Los Angeles is investigating Charlie, Moe and so forth; these three people.” Totally improper call; absolutely improper. Bill Smith, a person of integrity, and I was his right hand person, says, “Okay, don’t do it. Just try to find out discreetly what’s going on.” I find out discreetly what’s going on, not saying, “The attorney general is interested in this,” nothing whatsoever, we turned square corners; well, it turns out these three guys are crooks, so they’re rightly under investigation; they were indicted and so forth. So anyway, Bill calls back Lynn and says, “Bill, we’re investigating them because we think they’re crooks!” Lyn Nofziger: “But Bill, they’re our crooks.” Now the Justice Department just cannot be polluted. That’s where it is the temple of justice. You can have, okay, we’re going to do white collar crime, or we’re going to do terrorism, or we’re going to do drug—but you can’t—and this is where Judge Gonzales got into such trouble—a sense that the balance was no longer true and that somehow, even at this sort of meta level, politics, in the raw sense, was influencing the enforcement of the criminal laws.

Lisa Blatt

I was just going to say, I mean, one thing, these are two answers that—the way I saw sort of the transition was that there was this perception by the Obama Justice Department that the Bush White House was way too close to the Bush Justice Department, and that there was somewhat of an unhealthy overreaction to that, and try to have too much independence. I don’t think it was necessarily unhealthy. What has changed the debate on criminal enforcement is there was a crisp line; you don’t butt into criminal enforcement, and that is the 9/11 and the War on Terror, because to even think how far we’ve come; I was so appalled for so many years about the idea that you could detain an enemy combatant, that they wouldn’t go through the justice system, and now I look at the Christmas bomber and I’m thinking, “Why was he given Miranda Rights, and why wasn’t—why do we have to treat him like an ordinary criminal?” And it’s like, how much the debate has changed. Because after eight years, it now is not that unseemly or abnormal to think that we’re not going to actually try people as regular criminals, the way we’ve always done it. And so now, I don’t know whether criminal law enforcement on the War on Terror now is policy or criminal law enforcement. I just think this is new territory.

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