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One of Chief Justice William Rehnquist’s legacies to the legal profession was his role as a demanding connoisseur of oral advocacy at the Supreme Court. As chief justice, Rehnquist at times corrected lawyers’ grammar and pronunciation, dressed them down for being unprepared, and once scolded a lawyer for glancing up at the clock behind the justices before responding to a question. “Don’t look at the clock,” Rehnquist snapped during the 1989 episode. “You’re here to answer questions.” But to most advocates, it became clear over time that Rehnquist was not just being difficult; he set a high standard for Supreme Court argument and is now credited with helping elevate the level of advocacy during his 19 years as chief justice. Ironically, according to Ted Cruz Jr., one of his former clerks, Rehnquist identified John Roberts Jr., who has been nominated to replace him, as the best oral advocate he had seen. “He said publicly that oral argument rarely moved him 180 degrees from his views about a case before the argument, but he obviously cared very deeply about high-quality advocacy,” says David Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel, a frequent advocate before the Court and author of a book on appellate advocacy. “He listened extremely carefully to the argument and would quickly interpose a question if the advocate was not absolutely precise.” Frederick adds, “I will miss him at oral argument.” In his 1987 book, The Supreme Court, Rehnquist wrote extensively about oral arguments, even recalling the one time, in early 1971, when he himself argued a Supreme Court case as an assistant attorney general in President Richard Nixon’s Justice Department. “I sat like a greyhound in the slip waiting for my chance to begin,” he recalled. Afterward, he wrote, “I was drenched with sweat.” The case was Ehlert v. United States, and Rehnquist won. But Rehnquist’s most enduring gift in the field of advocacy may be the taxonomy he sketched out in the book of the different types of oral advocates he had witnessed as a justice. Rehnquist lamented that “the truly outstanding advocate before our court is still a great rarity,” a judgment he did not modify when a new edition came out in 2001. But he said, “rather than try to draw up a long list of do’s and don’ts for the oral advocate,” he would catalog the “species” of practitioners he had seen in his years as a justice. Rehnquist’s species: The Lector: The lector, Rehnquist wrote, “does just what his name implies: He reads his argument.” Reading from his or her brief itself, Rehnquist said, “is so egregious that it is rarely seen.” More often, lectors read paraphrases of their briefs, but they tend to treat questions from the bench as unwelcomed interruptions. What’s wrong with being a lector? The job of an oral advocate, Rehnquist wrote, is to “work his way into the judge’s consciousness” and to “make the judge think about the things that the advocate wishes him to think about,” which is best done by making eye contact with the judges. That’s hard to do when reading from a brief. The Debating Champion: This species, Rehnquist wrote, has an “excellent grasp of his theory of the case and the arguments supporting it,” and he can dazzle the justices with his depth of knowledge about the case. “But simply showing how well you know your subject is not the same as convincing doubters by first carefully listening to their questions and then carefully answering them.” Casey Jones: For this species, Rehnquist invoked the name of the legendary 19th-century train conductor known for steaming ahead at top speeds in his Cannonball Express. This lawyer “has a complete grasp of his subject matter, does listen to questions, tries to answer them carefully, and does not read from any prepared text”�all signs of good advocacy, according to Rehnquist. The problem is, the Casey Jones lawyer tends to barrel along at full speed, not stopping to “pick up passengers along the way.” Rehnquist explained that justices, being human, cannot absorb information delivered to them at breakneck speed. “Each of them will require a little time to assimilate what he is saying.” Rehnquist’s advice was to slow down the pace, leave secondary points to the written briefs, and “to remember that the lawyer who makes six points, of which three are remembered by the judges, is a better lawyer than a lawyer who makes twelve points, of which only one is remembered by the judges.” The Spellbinder: This species, Rehnquist wrote, “is fortunately today more rare than in the days when I was a law clerk.” The spellbinder has prized rapport with the Court�”that undefinable something called �presence,’ ” as he put it. But the spellbinder also “ tends to let his natural assets be a substitute for any careful analysis of the legal issues.” He added, “A florid peroration, exhorting the Court either to save the Bill of Rights from the government or to save the government from the Bill of Rights, simply does not work very well in our Court.” Combining the best traits of all these species, Rehnquist said, would result in the “all-American oral advocate.” Switching to the female pronoun, he defined such an advocate this way: “If the essential element of the case turns on how the statute is worded, she will pause and slowly read the crucial sentence or paragraph. She will realize that there is an element of drama in oral argument, a drama in which for half an hour she is the protagonist. But she also realizes that her spoken lines must have substantive legal meaning and does not waste her relatively short time with observations that do not advance the interest of her client. “She has a theme and a plan for her argument but is quite willing to pause and listen carefully to questions. The questions may reveal that the judge is ignorant, stupid, or both, but even such questions should have the best possible answer. She avoids table-pounding and other hortatory mannerisms, but she realizes equally well that an oral argument on behalf of one’s client requires controlled enthusiasm and not an impression of fin de siecle ennui.” Rehnquist concluded: “There is more to oral argument than meets the eye�or the ear. . . . If an advocate is effective, how he presents his position during oral argument will have something to do with how a case comes out.”
Tony Mauro can be contacted at [email protected].

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