Giuliani's Grade at the Supreme Court

Tony Mauro

Legal Times

Whatever voters think of Republican presidential candidate and former New York City Mayor Rudolph Giuliani now, to the late Supreme Court Justice Harry Blackmun he was a 5 out of 10.

Blackmun made his private assessment of Giuliani in 1983 when the then-associate attorney general argued before the Supreme Court in Bell v. United States, a minor case interpreting the bank larceny law that has languished in obscurity ever since. Blackmun's notes on the argument, along with all his other papers, are on file at the Library of Congress.

But Giuliani shouldn't feel too bad about his grade; his adversary, Florida lawyer Roy Allman, only got a 4 from Blackmun. And a political scientist who has studied the notes Blackmun took during oral arguments over his 24 years on the Court says Blackmun never gave a 9 or 10 ranking. "This is an above-average grade," says University of Minnesota professor Timothy Johnson of Giuliani's 5.

And then there's the bottom line: Giuliani won the case 8-1, with only Justice John Paul Stevens dissenting.

Victory was to be expected. It's a tradition that attorneys general and their deputies and associates are offered the chance to argue before the high court at least once during their tenure. But an integral part of that tradition, as former Solicitor General Theodore Olson puts it, is that "we try to make the case they argue a case that is winnable."

The late Rex Lee was solicitor general at the time Giuliani argued, but Olson was at the Office of Legal Counsel, and Olson now says, "I may have been there" when Giuliani appeared before the Court. Now a partner at Gibson, Dunn & Crutcher, Olson is also a top adviser to Giuliani. Olson says the Supreme Court argument does not often come up in their conversation.

Elliott Schulder, of counsel at Covington & Burling, was an assistant to the solicitor general at the time and recalls helping Giuliani prep for the argument.

"To me, he came across as a real lawyer, not a politician," Schulder recalls. "It was a relatively easy case, but he prepared very conscientiously. My impression was that he was a lawyer who understood legal arguments."

The case involved Nelson Bell, a Florida man who opened a bank account at Dade Federal Savings & Loan, then altered the account number on someone else's $10,000 check so he could deposit it in his new account. When the check cleared, he withdrew the $10,000. He was convicted under the federal bank larceny law, which is aimed at anyone who "takes and carries away" money belonging to a bank. Bell asserted that the law did not cover the "false pretenses" crime he committed.

So Giuliani's task was to convince the Court that the law was broad enough to cover Bell's crime and "all forms of theft," as he told the justices on April 25, 1983. From Blackmun's notes, it appears that Giuliani ran into skeptical questioning from "V-M," his shorthand for Justices John Paul Stevens and Thurgood Marshall. (Blackmun used "V" for Stevens because of the "v" in his name, which distinguished Stevens from the other justice whose last name began with S-t-e, namely Potter Stewart -- even though Stewart had retired by then.)

They pressed Giuliani to state what the federal interest was in covering a crime that could be taken care of under state law. The bank involved in the case was federally insured, he replied, and besides, Congress in 1937 had intentionally expanded the law to cover a broader category of crimes.

Blackmun often made peculiar notes to himself about a lawyer's physical appearance. He noted that Giuliani's opponent was "nice looking" and blond, with his hair parted down the middle. For Giuliani, his only notation was "38." Minnesota's Johnson said Blackmun often liked to guess the age of lawyers appearing before him, and in this case he got it right. Giuliani turned 39 the following month.

Footnote: Richard Nixon also argued before the Court before becoming a presidential candidate, representing the losing side in the First Amendment case Time Inc. v. Hill in 1966.