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The 164-year-old law firm Baker Botts is known for many things, but a significant U.S. Supreme Court practice has not been one of them. Which is why, when the firm announced this summer that it had hired four Supreme Court clerks fresh out of their year at the Court, it came as a considerable surprise. Most of the veteran Supreme Court firms consider themselves lucky if one or two clerks sign on in a given year. So why would four clerks who could write their own tickets at almost any firm choose to climb aboard at Baker Botts? The answer goes back nearly five years and tells the story of how a venerable law firm goes about launching a Supreme Court practice, even at a time of fierce competition for a shrinking number of cases. It also shows how, in the process, a firm can rejuvenate and energize a prestigious part of its business. The next generation of top Supreme Court advocates may be assembling at Baker Botts. As partners tell it, Baker Botts has known for a long while that � although its trial and appellate practice in Texas was strong � its practice in those fields in Washington, D.C., was in need of beefing up. And there is no better way to attract the necessary talent for an appellate practice in D.C. than by establishing a Supreme Court presence. “Great appellate practices have Supreme Court work,” says Jeffrey Lamken, the firm’s new appellate practice head. “Sophisticated, interesting work attracts great people.” The firm’s leadership thought it could buy its way into a Supreme Court presence, as well as get a good contingent of litigators, when it acquired the 30-member D.C. firm Miller, Cassidy, Larroca & Lewin in late 2000. In addition to the likes of Herbert “Jack” Miller Jr. � a top official in Robert Kennedy’s Justice Department and later Richard Nixon’s longtime attorney � the firm boasted Nathan Lewin, a top-tier Supreme Court advocate with more than two dozen cases under his belt. Then-Solicitor General Seth Waxman was a Miller, Cassidy alumnus, and the hope was that he would return to the firm, now subsumed in Baker Botts. “We wanted to take the whole firm over to Baker Botts,” says Stephen Braga, a Miller, Cassidy partner who is now hiring partner at Baker Botts. The Texas firm, he says, was “missing a piece” that Miller, Cassidy could supply. But things did not work out as planned, at least on the appellate side. Lewin did not move to Baker Botts with his firm, opting instead to open his own shop, Lewin & Lewin, with his daughter Alyza. Waxman did not return to his prior home, moving instead to Wilmer, Cutler & Pickering (now Wilmer Cutler Pickering Hale and Dorr). Former William Rehnquist clerk Jody Kris went with Waxman, and former Byron White clerk Scott Nelson went over to Public Citizen Litigation Group. Lewin, who prefers not to talk about why he did not join Baker Botts, says, “Baker felt left out. They had these great litigators, but nowadays, if you are going to be a premier firm in D.C., you want to be in the Supreme Court.” So Baker Botts looked for a Plan B, concerned that it would be difficult to assemble a Supreme Court team without a veteran advocate like Lewin. Braga says that it seemed that “the cornerstone of rebuilding a Supreme Court practice was a specialist like Seth [Waxman] or Carter Phillips.” With a bench that has been together for 10 years, the Supreme Court seems more than ever like a place where only the experts, the shamans, dare approach. “There is a real danger of getting torched in oral argument and losing a case,” says Braga. The solution did not present itself until last spring. John Elwood, a former clerk to Anthony Kennedy who made the move from Miller to Baker, had left for the Justice Department and the solicitor general’s office. The assistant to the solicitor general in the office next to Elwood just happened to be Lamken � an affable top graduate of Stanford University Law School who had clerked for Judge Alex Kozinski on the U.S. Court of Appeals for the 9th Circuit and Justice Sandra Day O’Connor at the Supreme Court. Lamken, 40, was a nimble advocate for the government, racking up 12 wins in 15 oral arguments � including one in which he survived the peculiar embarrassment that seems to be a rite of passage for the best of Supreme Court advocates: In Barnhart v. Thomas last October, Lamken addressed Justice Ruth Bader Ginsburg as “Justice O’Connor.” Lamken was interested in heading into the private sector, and Elwood urged him and Baker Botts to try each other out. It worked well. “They understood they weren’t hiring Seth Waxman,” says Lamken. “I don’t have Seth Waxman’s name. But I had 15 arguments, and they thought I would fit the bill.” With Lamken on board since February, the core of a new and younger Supreme Court practice was in place. Joining Lamken was Mark Stancil, 10 years Lamken’s junior, with some valued Supreme Court experience of his own. He was a Rehnquist clerk during the 2000 term � yes, during Bush v. Gore, though he won’t talk about it. Since joining Baker Botts in 2001, right after his clerkship, Stancil has built up a following among Supreme Court aficionados. That was partly accomplished with his e-mailed “Supreme Court Report,” a cheeky review of the day’s decisions and certiorari grants when the Court is in session. Elwood had begun writing the reports while at Miller, Cassidy, and Stancil picked up the mantle when Elwood left Baker Botts. Stancil is careful to poke fun at his former boss Rehnquist as much as any of the other eight justices. Among his avid readers: more than a few high court law clerks. Here is how Stancil headlined the final week of last term: “The Veep ducks efforts by some quacks hoping to meddle in his bid-ness; the United States must apply at least the standards of dictatorial regimes it deposes when handling ‘enemy combatants’; no beat-and-switch by crafty police interrogators; and claimants under the recently revived Alien Tort Statute must attach a lock of Lord Blackstone’s hair to complaints in U.S. courts alleging violations of international law.” Lamken hit the ground running, winning a “beauty contest” competition among law firms seeking to represent the California community of Rancho Palos Verdes in an unusual case that seemed like a good candidate for Supreme Court review. In City of Rancho Palos Verdes v. Abrams, No. 03-1601, the 9th Circuit ruled against the city last year, determining that a ham radio operator was entitled to damages for the city’s denial of a permit for an antenna on his property. There is a substantial circuit split on the issue, and with a 9th Circuit ruling on the chopping block, it seemed like a sure bet for Supreme Court review. Sure enough, the Court on Oct. 4 agreed to take up the case. “Arguing at the Supreme Court is really a universe that is different from every other court,” says Peter Pierce of the Los Angeles firm Richards, Watson & Gershon, who argued for the city at the circuit level. “The specialists are familiar to the justices. The fact that Jeff [Lamken] argued 15 cases and clerked for Justice O’Connor was a big plus.” He adds, “The fact that he was willing to cap the city’s fees also helped.” Pierce declines to say what Baker Botts is charging for the Supreme Court representation, but says it was “well under” the nearly $500,000 some firms will charge soup to nuts. Lamken also is reluctant to state what he charged the city, but acknowledges that “we do some discounting to make sure we are competitive.” His own hourly rate of $495 comes in substantially lower than that of some of the older veterans. But the icing on the cake for the new practice came with the hiring of the four law clerks from the latest term of the Court. They are barred by ethics rules from working on Supreme Court cases for two years, but they can tackle other projects and lower court litigation. Stancil thinks the appeal for the new hires was to get in on the ground floor of a new part of the practice � especially one led by lawyers who are not much older than they are. Says Stancil: “We are committed to giving young lawyers the chance to argue. It’s more appealing than being number six on the brief and waiting for 10 years to argue a case.” This article was first published as Tony Mauro’s “Supreme Advocacy” column in the October issue of The American Lawyer .

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