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In August 1993, the number of women serving as justices on the U.S. Supreme Court increased from one to two. The presence of a second female justice appeared to pose a particular challenge to many advocates at oral argument, because thereafter it became a common occurrence for attorneys to refer to Justice Ruth Bader Ginsburg as “Justice O’Connor” and to refer to Justice Sandra Day O’Connor as “Justice Ginsburg.” Of course, O’Connor and Ginsburg have never looked alike, they sound nothing alike, and (given the Court’s practice of seating associate justices according to seniority) they were never seated next to one another on the bench at oral argument. Yet these frequent, and often embarrassing, missteps were committed not only by novices but also by attorneys who had previously argued numerous cases before the Court. The oral missteps were often attributed to the intense pressure that advocates experience when presenting a case to the Court and, perhaps, to unconscious sexism. I have not discovered any studies of whether only male attorneys committed this error or whether female attorneys made the same mistake. It appears that O’Connor and Ginsburg were at least able to keep a sense of humor about these recurring misidentifications. In an interview published in the May 2001 issue of O, The Oprah Magazine, Ginsburg is quoted as saying: “The National Association of Women Judges, with great foresight, it turns out, had a little celebration at the Court when I took my seat. They presented T-shirts to Sandra and to me. Hers read I’m Sandra, not Ruth and mine was I’m Ruth, not Sandra. I went through the entire last term, which was my seventh year on the Court, with no one calling me Justice O’Connor. It took six years! But to me that was a sign we’ve really made it, that they know there are two women.” Because O’Connor’s retirement from the Court took effect on Jan. 31 this year, one can reasonably assume that attorneys will now feel confident in assuming that any questions spoken in a female voice come from Ginsburg. But the arrival of O’Connor’s replacement, Justice Samuel Alito Jr., appears to present a new, yet similar challenge for oral advocates. SOUNDS ITALIAN Although Alito has only been at the Court for about four months, it already appears that Scalia-Alito is the new O’Connor-Ginsburg. As was the case with O’Connor and Ginsburg, Justice Antonin Scalia does not look like Alito, Scalia does not sound like Alito, and these two male justices do not sit next to one another on the bench. Scalia is also typically much more active than Alito in the questioning at oral argument. But, unlike with O’Connor and Ginsburg, the names of the two male justices do at least have certain similarities. Both “Scalia” and “Alito” consist of three syllables. The second syllable of each surname sounds identical. The third syllable of “Scalia” sounds identical to the first syllable of “Alito.” And the first syllable of “Scalia” has the same vowel sound as the first syllable of “Alito.” Perhaps for these reasons, attorney Neal Katyal, while arguing the case of Hamdan v. Rumsfeld on behalf of a Guant�namo detainee in March, responded to a series of questions from Alito by first saying “Justice Scalia” before quickly correcting himself. REALLY BIG DREAMS? Even more recently, The Washington Post published an article reporting on Judge J. Michael Luttig’s decision to leave the U.S. Court of Appeals for the 4th Circuit to become senior vice president and general counsel at Boeing Co. In addressing whether Luttig’s decision to depart from the judiciary may have reflected disappointment at not being selected to fill either of the two recent vacancies on the Supreme Court, the May 11 article stated: “But the friends added that Luttig’s disappointment over the nominations of Roberts and Scalia, combined with uncertainty over when another Supreme Court vacancy would occur, also played a role.” Luttig had clerked for Scalia on the D.C. Circuit from 1982 to 1983, and when Scalia was appointed to the Supreme Court in 1986, Luttig was barely five years out of law school. Even someone with Luttig’s credentials would have had to be quite precocious to have been disappointed at being passed over for a Supreme Court vacancy while in his early 30s. A few days later, the Post published a correction saying that the May 11 article “incorrectly stated that Luttig’s friends said the judge was disappointed over the Supreme Court nominations of John G. Roberts Jr. and Antonin Scalia. They said he was disappointed over the nominations of Roberts and Samuel A. Alito Jr.” Apparently even outside the pressure cooker of presenting oral arguments to the Supreme Court, knowledgeable observers and newspaper reporters are prone to mistaking Scalia for Alito. It is too early to know whether any organization plans to provide these two jurists with T-shirts stating “I’m Scalia, not Alito,” and “I’m Alito, not Scalia.” I expect that the two justices will endure with good humor the potential for error that their similar-sounding names are likely to continue to produce. But I feel quite sorry in advance for the first attorney who at oral argument refers to either one of them as “Justice Scalito.”
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. His appellate Web log can be read at howappealing.law.com. This article first appeared on Law.com, an ALM publication.

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