It's the classic dilemma that faces parties who suddenly find themselves before the Supreme Court. Who should argue: the lawyer who has been with the case from the beginning, or a seasoned Supreme Court advocate who knows which buttons to push to win the hearts and votes of five justices?
The Supreme Court created just such a dilemma Monday in its handling of motions filed in Carcieri v. Kempthorne, set for argument on Nov. 3. As a result, says one of the lawyers involved, "we are at a massive impasse" over who will argue.
At issue in the case is whether the Interior Department has the authority to convert a parcel of land in Charlestown, R.I., into federal trust land for the benefit of the federally recognized Narragansett Indian Tribe. The Court granted review in February, and as the briefing developed over the summer, the Court was hit with three motions seeking divided argument time.
Gov. Donald Carcieri, who had hired former Solicitor General Theodore Olson to represent the state, asked that the Court grant time for both Olson and Attorney General Patrick Lynch to argue on behalf of the state. That did not sit well with the town of Charlestown, whose assistant solicitor for Indian Affairs, Joseph Larisa Jr., has been with the case for 10 years, from its inception and through the appeals process.
Larisa filed motions seeking argument time for himself, and opposing the governor's motion, calling it "little more than a request for face time before this Court."
On the other side of the case, meanwhile, the Indian tribe, represented by Thomas Goldstein of Akin Gump Strauss Hauer & Feld, sought divided argument time with the solicitor general's office, which represents Interior Secretary Dirk Kempthorne.
On Monday, the Court said, in effect, "a pox on all your houses. Work it out." All the motions for divided argument were denied.
Larisa immediately proposed a coin toss to decide whether he will argue on behalf of the town and the state, or whether it will be Olson or someone from the state attorney general's office instead. The state is resisting the idea of a coin toss, according to Larisa. Efforts to contact the attorney general's office have been unsuccessful.
In a phone interview Tuesday, Larisa said he is under pressure from the state to agree, without a coin toss, to Olson as the sole advocate at oral argument. "That's not going to happen; it's not going to happen at all." He adds, "It will be like a dog chasing its tail until we have the coin toss. We are at a massive impasse." In years past, the clerk of the Court would sometimes play the role of coin tosser to resolve such a dispute, but that has caused animosities in some instances, so Larisa says he was told, "the clerk won't do it for us."
Larisa adds, "I have the greatest respect for Ted Olson. If it were any other case, I would be head over heels for Ted." But, he said, "I know this case far better than Ted. He just came in at the merits stage. I've represented the governor, the attorney general and the town on this for 10 years."
First reported in The BLT: The Blog of Legal Times
