It was no surprise that Amanda Cohen Leiter missed the first few phone calls from her former boss, Justice John Paul Stevens, this summer. Leiter, a 2003-2004 Stevens clerk and now a professor at Catholic University's Columbus School of Law, is on maternity leave with her baby daughter.
But Stevens and Leiter finally connected, and he made her a surprising offer: a chance to make her first oral argument before the Supreme Court. Even though, as she acknowledged, "the timing is imperfect," Leiter said yes, and so now she is busy briefing and preparing for the oral argument in November in the case of Kucana v. Holder.
The case came to Leiter the same way that John Roberts Jr. and Maureen Mahoney got their first arguments: on assignment from the justices they had clerked for, in cases in which one side no longer wants to, or cannot, argue before the Court. (We wrote about the custom here last year.)
Most often, it happens because the government no longer embraces the position it would be expected to espouse at argument. Rather than dismiss the case, the Court will name a lawyer -- almost always a former clerk -- to advance the orphaned argument, guaranteeing a full airing of both sides.
Leiter will have family help as she prepares. Her father is Louis Cohen, senior counsel at Wilmer Cutler Pickering Hale and Dorr, himself a former high court law clerk who has 16 Supreme Court arguments under his belt. Then there's Leiter's husband, Sambhav Sankar, also a former clerk to Stevens. Outside the family, Leiter says she has recruited an O'Connor clerk from her term, RonNell Jones, now on the faculty at Brigham Young University, to help out. A former newspaper reporter and editor, Jones knows deadlines.
While there have been a good number of father-daughter law clerk pairings, Cohen wonders how many fathers and daughters have also both argued before the high court. He said that after the call came and his daughter consulted with him and her husband, "We all agreed you have to say yes."
Cohen says the argument in Kucana will be a "lonely fight" for his daughter. At issue is whether, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, federal courts have jurisdiction to review the Board of Immigration Appeals' denial of an immigrant's motion to reopen proceedings -- in this case, Agron Kucana, an Albanian native. The 7th U.S. Circuit Court of Appeals said no in a divided ruling by Chief Judge Frank Easterbrook. Judge Kenneth Ripple labeled his concurrence "dubitante," a rarely used term that means "with doubts." The solicitor general's office, which would ordinarily be in the position of defending the 7th Circuit decision, told the Court in its brief that "the court of appeals erred."
Leiter, a former environmental litigator, acknowledges that "immigration is not my primary area," and that in jurisdictional matters, she usually argues "in favor of expanding jurisdiction," not against. But duty has called, and Leiter is eager to take it on.
This article first appeared on The BLT: The Blog of Legal Times.