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WASHINGTON — They call themselves “the last-minute babes of Stanford Law,” says Pamela Karlan, one of three female professors from Stanford Law School who have taken over recent oral arguments at the U.S. Supreme Court at a late stage, if not the last minute. Last term, there was Jenny Martinez, a former clerk to Justice Stephen Breyer, arguing the landmark enemy combatant case Rumsfeld v. Padilla, with less than a week’s notice. This term, former Harry Blackmun clerk Karlan found out on Thanksgiving Day, Nov. 25, that she would argue in the bankruptcy case Rousey v. Jacoway the following Wednesday. Both were called on to replace lawyers who had handled the cases below, but were not viewed as the best advocates to take on the high-wire act of arguing before the nation’s top court. And then, in one of this term’s biggest cases, former Stanford Dean Kathleen Sullivan argued in December for the interstate shipment of wines to consumers in Granholm v. Heald and Swedenburg v. Kelly. Sullivan had more lead time; at a “beauty contest” a month earlier before wine industry clients, she won out over former Solicitor General Kenneth Starr, currently dean of Pepperdine University School of Law. Starr had been hired by the wineries in 2003 to fight their battle in the courts and had been expected to argue. Of counsel with Kirkland & Ellis, Starr is no slouch in the oral argument department, but in the tryout Sullivan performed better — and, importantly, spoke faster — than the avuncular Starr. The wine dispute is a high-stakes clash between two seemingly irreconcilable parts of the Constitution: the so-called dormant commerce clause, which bars state trade barriers even in areas of commerce in which Congress has not legislated, and the Prohibition-ending 21st Amendment, which gave states broad power to regulate the importation of alcohol. Wineries, seeking to boost sales over the Internet, challenged the laws of half the states that prohibit direct out-of-state sales to consumers within their borders. Michigan and New York sent their solicitors general — Thomas Casey and Caitlin Halligan — to defend their laws. But who would represent the wine industry challengers? The beauty contest held to answer that question took place in Phoenix — which is not exactly the wine capital of the world, but is where co-counsel Clint Bolick of the Institute for Justice lives. His wife was about to give birth, and he did not want to leave town. It was already a given that Bolick, who represented Virginia vintner Juanita Swedenburg in her fight against New York’s law, would argue part of the time. So the task before the “judges” in Phoenix — including Beth Brinkmann of Morrison & Foerster and Carter Phillips of Sidley Austin Brown & Wood — was to decide whether Starr or Sullivan would best complement Bolick. Bolick’s unexcitable, straightforward style would deliver the libertarian pitch against the alcohol wholesalers’ state-aided “oligopoly” for 15 minutes, but who would take the other 15 minutes to answer justices’ unpredictable concerns and argue against state discrimination in interstate commerce? According to one participant, Sullivan’s faster pace was a winning factor: “She packed more points into her time than Starr was able to.” Was there also a feeling that the generally blue-state wineries should not be represented by Bolick and Starr, two high-profile lawyers usually identified with conservative causes? Another participant who was a judge in the tryout says no. This lawyer acknowledges going into the beauty contest with “two strikes against Starr –I’m not fond of his politics” — but says that was not a factor in the ultimate decision to go with Sullivan, who has solid liberal credentials. In the end, the decision to send Sullivan before the justices instead of Starr was made amicably, says Tracy Genesen, legal director of the wineries’ Coalition for Free Trade and of counsel at Nossaman Guthner Knox & Elliot in Sacramento: “There were no sparks, no underlying agendas.” So how did Sullivan do? As billed, she did speak quickly, and did effectively cover a lot of ground. She started off by dealing with an issue that Justice Anthony Kennedy had seemed worried about during Bolick’s argument: whether the deeply entrenched three-tier system for distribution of alcohol in the United States — manufacturers to wholesalers to retailers — would fall if the wineries win. “Nothing in today’s case, Justice Kennedy, requires you to take on the three-tier system, for the issue that is presented here is a very narrow one,” Sullivan began. Kennedy jumped in: “Well, it’s very narrow, but the rationale is very sweeping, and that’s why I asked.” On the contrary, said Sullivan: “It’s really the state’s position, aided by their wholesaler allies, that is the sweeping one.” States claim that because of the 21st Amendment, any import regulation would be okay, Sullivan asserted — even a law enacted, say, by Michigan, to bar all California wines from coming into the state for the simple reason that “there are too many of them.” Justice Ruth Bader Ginsburg then asked whether New York could ban direct sales to its residents from out-of-state wineries if it also banned direct sales by in-state wineries. “That’s exactly correct,” Sullivan told Ginsburg without hesitation, adding pointedly, “As you’ve said in the context of gender discrimination, you can cure an equal protection problem by leveling up or leveling down.” Responding with a reference custom-tailored to the justice who asked the question is a classic tactic from the playbook of Sullivan’s onetime mentor, Harvard Law School professor Laurence Tribe. Justice John Paul Stevens asked the next logical question, though: Could states ban all out-of-state wine, simply to give local producers a monopoly? Sullivan shut down the inquiry: “Justice Stevens, a state may not discriminate against out-of-staters for the sole purpose of economic protectionism.” Sullivan also parried questions from Justices Stephen Breyer and David Souter, with Souter persisting on the question that concerned him most: tax enforcement. Aren’t states making a valid argument when they insist that direct sales by out-of-state wineries will make it difficult to collect sales taxes? “Neither Michigan nor New York has shown that the factual discrimination here is necessary . . . to protect the collection of taxes,” she said. Sullivan again went for a made-to-order response to Souter’s question. She referred to New Hampshire, “your own state,” which has devised a way of collecting taxes from wineries in other states. “Maybe we’re getting ripped off,” said Souter, but Sullivan replied, “New Hampshire’s done very well collecting taxes from out-of-state producers.” She went on to say that the Internet increases the ability of states to police out-of-state wineries without an in-state presence and handled a barrage of other questions to the seeming satisfaction of the justices. The questioning did not keep Sullivan from returning to her key argument: “Michigan and New York may not facially discriminate in favor of their own producers unless they can show that reasonable nondiscriminatory alternatives are unavailable.” By the end of the hour, it seemed that the unlikely team of Bolick and Sullivan would carry the day. The free-market impulses of many of the justices seemed to place them on the side of the wineries seeking to open markets. The former dean of Stanford may not have the Starr power of the current dean of Pepperdine, but she more than held her own. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected]

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