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The recent announcement by former Solicitor General Drew Days III that he was retiring from Morrison & Foerster represents the winding down of a significant career of advocacy before the Supreme Court. Days, 70, argued his first case in 1979 while serving in the Carter Administration as assistant attorney general for civil rights. He has argued 23 times since then, 17 as solicitor general. Among his cases are: affirmative action landmarks Fullilove v., Klutznick and Adarand v. Pena; and United States v. Lopez and Seminole Tribe v. Florida, key Rehnquist Court rulings on federalism. Though he is leaving his of counsel position at Morrison & Foerster, Days says he will continue teaching “on a limited basis” at Yale Law School, where he is Alfred M. Rankin professor emeritus of law. He also serves on several boards, including one that is planning the Smithsonian Institution’s National Museum of African American History and Culture. Those positions, plus spending more time with his grandchildren in Texas, “should keep me off the streets for the most part,” Days joked. This week Days offered his thoughts and recollections about the Court and his career in an interview with Tony Mauro. Here is the transcript: Question: You first argued before the Supreme Court in 1979. How has oral argument changed since then? Days: I have appeared before three chief justices, one of my young associates painfully reminded me! During Chief Justice Warren Burger’s tenure, lawyers were kept to their allotted time but were given at least a few minutes to lay out their basic points at the outset before the questioning began. The justices were active questioners but tended to “hide their cards” with respect to how they were likely to vote. Chief Justice Rehnquist enforced the oral argument time limits with military precision, often cutting off lawyers mid-sentence once the red light went on. During his tenure, he and the other justices engaged in very active questioning of counsel, making fairly explicit their views as to the strength and weaknesses of lawyers’ arguments. Chief Justice Roberts has, thus far, been inclined to give some latitude to counsel with respect to time limits. This seems to be true especially where questioning from the bench may have made it difficult for a lawyer to set out any more than an outline of his or her basic argument. I suspect that his “sympathy” may stem from his prior experience as a frequent Supreme Court advocate. The questioning of the justices continues to be “hot and heavy,” as it was doing during the Rehnquist period, to which Justices Sotomayor and Kagan have been notable contributors from the very start of their tenures. Question: How do you look back on your tenure as solicitor general? Days: I look back on my career as solicitor general as most other appellate lawyers are likely to do: namely, rearguing more persuasively in my mind cases that I lost, and feeling much too smug about the ones from which I emerged victorious. One experience that I find myself revisiting from time to time has to do with my preparing to argue a military justice case in the Supreme Court, Weiss v. United States. As an ex-Peace Corps volunteer, I was understandably reluctant to do so, but my top staff explained to me that such a case came up infrequently — and when it did, the solicitor general was expected to appear for the United States. Having been outvoted, I dutifully visited my local video store on the way home that evening and rented a movie that I thought would prepare me well for the task ahead. I took it home, put it on and took careful notes on what it revealed about the courts-martial system. The next morning I was informed, when I arrived at my office, that the Commandant of the Washington Navy Yard had called me. I returned his call immediately and he answered, “General, I understand that you are going to argue our case in the Supreme Court.” I responded, rather proudly, that I was already “on the case” and had spent the prior evening glued to every word uttered by the actors in “A Few Good Men.” There was about a fifteen-second silence on the commandant’s end. When he came back on the line, he said, “General we will have a car pick you up at 0800 tomorrow so that you can spend the day observing a real court-martial proceeding.” That I did. Along with that experience, subsequent research and invaluable meetings with JAG officers at the Pentagon, I felt prepared and proud when I stood before the Court at oral argument. Question: We are in the midst of a Supreme Court term that has some very high-profile, politically charged issues including health care, redistricting and immigration. Do you worry that the Court is becoming too politicized? Days: I do not worry so much that the Court is becoming too political but rather that the appointment and confirmation processes have become heavily freighted with blatant appeals to special interests and the application of various non-germane “litmus tests.” Highly qualified potential nominees are consequently right to have serious reservations about subjecting themselves to this arduous gauntlet. Question: One of your early arguments was in the Fullilove case. How do you think the current Supreme Court will deal with affirmative action? Days: Where the Court goes on affirmative action depends very much on whether it is willing to give adequate latitude to public educational institutions striving to foster greater racial and ethnic diversity as it did in assessing favorably the University of Michigan Law School’s approach or, instead to limit sharply such efforts as it did in rejecting the University’s undergraduate admissions program. The Court’s unfavorable treatment of the use of racial criteria in public school student assignment programs and electoral redistricting suggest that similar arrangements will have a difficult time meeting its strict scrutiny standard of review. Question: Despite your prominence in the Supreme Court bar, there are still relatively few African-Americans among the ranks of Supreme Court advocates and law clerks. Why do you think this is, and do you view it as a significant problem? Days: I have no special insights as to why there are relatively few African-Americans among Supreme Court advocates or Court law clerks, but think that there is room for improvement in both respects. For starters, very few law school graduates of any race, creed, color or gender are fortunate to earn Supreme Court clerkships or to argue cases before that Court. To those who succeed in that regard, the career trajectory, with notable exceptions, is from membership on a prestigious law review or journal to a clerkship with a prominent federal appellate court judge to a Supreme Court clerkship. After clerking, the next step may be an assistance-ship in the Solicitor General’s Office and, after a few years, employment as an associate in the Supreme Court practice group of a major law firm. A few African-Americans have followed that path, but most have found greater opportunities to argue cases in the Supreme Court on behalf of civil rights and other public interest groups. Finally, as hard as it may be for one to believe, most lawyers do not aspire to be regular Supreme Court advocates. African-American lawyers, like most of their peers, are likely to be drawn much more to transactional practices or posts in the corporate legal sector. In any event I believe that it behooves all those with important decision-making roles in the “trajectory” I have mentioned to ensure that African-American lawyers are not effectively denied serious consideration for “stepping-stone” opportunities to judicial law clerkships and Supreme Court arguments. Question: There has been a lot of criticism lately of legal education and how it does not prepare students for the practice of law. As a practitioner and an academic, what is your view? Days: I think that these criticisms are somewhat overstated. Although I do not claim to be an authority on this subject, my impression is that, largely as a result of the impressive efforts of the American Bar Association and the Association of American Law Schools, there has been an overall improvement in the quality of law school curricula in recent years. Consequently, very few institutions, if any, can fairly be charged with teaching only to prepare students for the state bar examination or what they need to do the day they hang out a shingle. At the same time, there has been a dramatic growth in the number of clinical programs established at national law schools, in particular, to provide students with “hands on” experiences in representing real clients in a variety of challenging legal contexts. Claims that law schools are doing an inadequate job of preparing students for practice may also be a consequence in part of current economic realities of the profession. Given what lawyers now charge for their services, what clients expect to get for their money, and what young lawyers, particularly in major firms, are being paid, these concerns are not surprising. Tony Mauro can be contacted at [email protected].

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