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Arguing a case before the Supreme Court of the United States has always been the Matterhorn of the legal profession: a terrifying, exhilarating, career-crowning half-hour ascent to the realm of the black-robed law gods. But whatever it was before, it is more so now. The Court’s plummeting docket and its intense, almost manic questioning from the bench have combined to fundamentally change advocacy before the nation’s highest court. Competition for coveted arguments is more intense. Massive preparation is more imperative. And clients who might have stuck with their local counsel before are reaching more often for high court specialists, the specialists say. The Matterhorn has become Everest, so the sherpas are in great demand. A statistical survey by The American Lawyer of the last five terms confirms the reemergence of a Supreme Court bar the likes of which has not been seen since the early days of the republic — when Henry Clay, Daniel Webster, Francis Scott Key, and a handful of other advocates argued day in and day out at the Supreme Court. A scant 13 years ago, Chief Justice William Rehnquist was able to state flatly “there is no such Supreme Court bar at the present time,” because he rarely saw a private practice lawyer argue before him more than once a term. But now, even with the justices hearing only half the number of cases as then, it is not unusual for a small group of top specialists in private practice — all white males — to argue one to three times a term. Sidley & Austin’s Carter Phillips argued — and ultimately won — three cases in the space of a month last term, and has argued 12 cases in the last five terms. This summer Microsoft Corp. signed Phillips on to its defense team for its antitrust journey through the Supreme Court. With the supply of cases cut in half, the demand among the dozen or so firms with serious Supreme Court practices has become intense. In a practice area that venerates civility, lawyers are beginning to bump into each other as they pursue clients. A Massachusetts lawyer even went so far as to sue Phillips several years ago for taking an oral argument away from him in 1993. (Phillips prevailed in the suit, however.) Like fishermen going after a depleted catch, lawyers are trolling further and wider for the chance to argue before the Supreme Court. Upstart solo practitioner Thomas Goldstein is drawing disapproving — perhaps envious — glances from staid veterans for cold-calling lawyers who have lost cases that might attract Supreme Court attention. Goldstein will be arguing two cases this fall. The drought of cases is also affecting the solicitor general’s office, which has always attracted top talent by being able to offer them the prospect of arguing multiple oral arguments. Advocates from the SG’s office do still get substantial face time with the justices — but often in ten-minute snippets as amicus curiae instead of the full-blown 30-minute arguments that were once common. All this fierce competition takes place over what seems, from the outside, like a dubious prize: a half hour of jackhammering from justices who sometimes seem more interested in making lawyers suffer than in hearing what they have to say. Antonin Scalia toys with lawyers. David Souter confuses them. William Rehnquist snarls at them, sometimes correcting their grammar. John Paul Stevens asks the one question the lawyer was not expecting. Stephen Breyer waits until the end of their presentation to pounce. And Ruth Bader Ginsburg? She interrupts everyone else. Lawyers who subject themselves to this abuse universally describe it as fun, but it sure doesn’t look that way. No lawyer has fainted during oral argument lately — it happened several times in the last century — but it seems only a matter of time. Supreme Court argument is not a game for the faint-hearted. A dozen years ago, three or four of the nine justices were content to listen to lawyers’ arguments, asking few questions. Now, all the justices except Clarence Thomas arrive on the bench with an irresistible urge to ask questions — lots of them. And even Thomas, when he asks a question three or four times a term, packs a punch — aided by the element of surprise. “Nine prima donnas, eight of whom are interested in talking during oral argument,” is how Laurence Tribe, a professor at Harvard Law School and a sometime advocate before the high court, describes it. “No Court in my lifetime was remotely as active as today’s Court.” Tribe has argued seven cases in the last five terms. To help get lawyers in shape to argue before the justices, the Public Citizen Litigation Group, Georgetown University Law Center’s Supreme Court Institute, the State and Local Legal Center, and the National Association of Attorneys General — as well as some of the top private firms — run moot courts throughout the term. “With fewer cases on the docket, the justices are more prepared for every argument. It’s an extraordinarily hard court to argue before,” says Public Citizen’s Alan Morrison, whose Supreme Court Assistance Project often coaches first-timers. Morrison has argued four times in the last five terms himself. Even the veterans say they’ve had to ratchet up preparations for oral arguments — in speed as well as time. Subtle changes in the Court’s calendaring often mean cases are set for argument more quickly than before. “For three weeks before the argument, you don’t do anything else,” says veteran advocate H. Bartow Farr III, of Washington, D.C.’s Farr & Taranto. “You talk to your wife, but you have a vacant look in your eyes, because you are thinking about your jurisdictional argument.” Court clerk William Suter helps relieve argument-day stress with a friendly tour, briefing, and handshake. He lets it be known that justices are aware if a lawyer is before them for the first time. Not that they are any less inquisitive toward newcomers than veterans. “You get to talk maybe for a minute and a half, if that, then it’s off to the races,” says Hogan & Hartson’s John Roberts, Jr. President Clinton’s lawyer Robert Bennett, of Skadden, Arps, Slate, Meagher & Flom, who usually can be expected to dominate a conversation, counted 35 interruptions from the justices during his 15 minutes of argument on behalf of President Clinton in the Paula Jones case. “I thought I could keep them away from me for a minute,” Bennett recalled soon after the argument. But he couldn’t. Lawyers count themselves lucky if they can get through their half hour still standing. “You argue the way I play tennis,” says Phillips. “You do your best to get the ball back to the other side. You’re not looking to slam it like Pete Sampras.” Jeffrey Sutton of Jones, Day, Reavis & Pogue, a relatively new specialist on the scene, prepares one- and two-sentence answers to the questions he anticipates, because he knows he’ll be interrupted if he goes on longer than that. Chief Justice Rehnquist has chided Scalia and Ginsburg for cutting off lawyers during their answers to questions, but they gleefully do it again. “It’s the academic in me,” Scalia once confessed. “The devil makes me do it.” The justices themselves seem to know that a half hour before them today is not the same experience it used to be. “I’d be scared to death to be a lawyer before the Supreme Court today,” Justice O’Connor said at the recent annual conference for the 9th U.S. Circuit Court of Appeals. “I don’t know how you ever keep up your train of thought.” At the same conference, O’Connor also dealt with a question that seems to get asked every time a justice appears in public: Do oral arguments matter? Of course they do, O’Connor replies — echoing what every other current justice has said at one time or another. Justices don’t arrive at oral argument as blank slates, O’Connor suggested. “You’ve tentatively thought it through. You think you know how you’re leaning,” she said. “A lawyer can shake that confidence.” The intensity — and the importance — of the arguments seems to have raised the stakes involved. Bad performances at oral argument have gotten lawyers fired and even sued in recent years. During the now-legendary 1995 arguments in Shalala v. Whitecotton, which involved the National Childhood Vaccine Injury Act, Wyoming attorney Robert Moxley, of Cheyenne’s Gage and Moxley, was so rattled by the barrage of questions from the bench — some of which were ambiguous — that he began contradicting himself in his answers. As he tried to backpedal, a furious Rehnquist asked him, “How can you stand up there at the rostrum and give these totally inconsistent answers?” Moxley apologized, but Rehnquist said the answers made him “gravely wonder” how well prepared Moxley was. Moxley’s clients fired him the next day, not waiting for the outcome of the case. (They lost 9 to 0.) Moxley, who insisted he was well prepared, said afterward that “I felt like I dropped out of a tall cow’s ass.” Asked to explain the metaphor, he said, “The taller the cow, the bigger the pile.” In a more recent argument, a lawyer’s erratic performance before the Supreme Court earned him a malpractice lawsuit. In Glickman v. Wileman Bros. & Elliott, California fruit growers couldn’t agree about who should argue before the Supreme Court in their First Amendment challenge of a federal program that levied fees against them for generic advertising of California fruit. Fresno, Calif., lawyer Thomas Campagne of Thomas E. Campagne & Associates, who had represented the growers in lower court proceedings, won a coin toss over University of Utah College of Law professor Michael McConnell, a veteran advocate before the high court. For a sometimes bizarre and raucous half hour in December 1996, Campagne only glancingly mentioned the First Amendment issues in the growers’ case, instead reprising his gripes about the administration of the fruit promotion program. In one verbal detour, he guessed that Scalia wouldn’t buy green plums because “you don’t want to give your wife diarrhea.” Scalia sputtered, “I’ve never seen a green plum.” Campagne lost the case, 7 to 2. After the argument one of the growers, Dan Gerawan, hit Campagne with a malpractice suit claiming his Supreme Court arguments “fell below the standard of care.” The suit and a cross-suit filed by Campagne were settled out of court. But one of the novel grounds in Gerawan’s lawsuit somehow signaled a turning point and even spawned a law review article. Campagne’s malpractice, according to Gerawan, included “failure to refer to a specialist,” namely McConnell. The Supreme Court specialist had arrived. The modern specialized Supreme Court bar began forming around 20 years ago. Some whimsically trace its beginning to a Supreme Court rule change that stated “the Court looks with disfavor on any oral argument that is read from a prepared text.” An oral argument could no longer be a brief with gestures. Not long after, Stephen Shapiro left the solicitor general’s office to launch a Supreme Court specialty at Mayer, Brown & Platt. Soon Carter Phillips brought solicitor general Rex Lee to Sidley & Austin, a rival Chicago firm. A smaller boutique — Onek, Klein & Farr (now Farr & Taranto) — billed itself as a Supreme Court specialist, though not exclusively. A handful of other firms have followed suit with Supreme Court and appellate practices — most of them populated by former Court law clerks and alumni of the solicitor general’s office. Those experiences count, giving lawyers insight into the folkways of the Court and the kinds of arguments that appeal to the justices. “There’s no way to overstate the value of that experience,” says Phillips, a clerk for the late Warren Burger. “It’s a very warm environment if you’ve been there before. Everyone says hello.” In that sense, the growth of the Supreme Court specialist is not unlike the rise of the Washington lobbyist, says University of North Carolina political scientist Kevin McGuire, who has studied both. “Corporations look for Washington-based lobbyists for their expertise on how the executive and legislative branches operate. I don’t think folks are aware of the extent to which that happens with the judicial branch, too,” McGuire says. And the strategy works. To find out if clients did better when they hired these insiders, McGuire totaled up the number of former clerks who appeared on briefs on both sides in 178 cases heard by the Court. Parties that listed two more former clerks than their adversaries won 83 percent of the time. It doesn’t always pay to hire a Supreme Court specialist. In a recent talk Justice Sandra Day O’Connor recalled a bankruptcy case from last term in which both lawyers were novices, but “they did a heck of a good job.” Justices are not experts in bankruptcy law, she explained, so it was beneficial to have lawyers before them who practiced bankruptcy law and could answer nuts-and-bolts questions that Washington Supreme Court advocates might not know. O’Connor did not mention names, but the case she referred to was Hartford Underwriters v. Union Planters Bank. G. Eric Brunstad, Jr., of the Hartford office of Boston’s Bingham Dana, who argued for the underwriters, welcomed O’Connor’s comment. “There’s something to be said for a generalist like Carter Phillips, but when you are asking the justices to delve into an arcane area of the law like bankruptcy, I think it pays to have the bankruptcy experts argue it.” Most cases, according to the numbers, are still argued by lawyers who are standing in front of justices for the first or second time. But veterans say the trend is running their way. “Clients are more sophisticated, and they are far more likely to look for a specialist than before,” says Phillips, whose bill for a Supreme Court case, start to finish, can come close to $500,000. Clients who don’t reach for Phillips may seek out John Roberts, Jr., at Hogan & Hartson, or Gibson, Dunn & Crutcher’s Theodore Olson, or Charles Cooper at Cooper Carvin & Rosenthal — all former Supreme Court clerks with solid Reagan or Bush administration credentials. Others at the top include Alan Morrison at Public Citizen Litigation Group, Harvard’s Laurence Tribe, or Walter Dellinger at O’Melveny & Myers. And then there’s Thomas Goldstein, the boldest newcomer on the scene. Daily sweeps of lower court decisions help him spot cases that reflect a split between circuits and that, as a result, might appeal to the Supreme Court for review. He then calls the lawyer who lost below — sometimes being the first to suggest the possibility that a Supreme Court appeal might succeed. Other top firms such as Mayer, Brown & Platt occasionally call potential clients out of the blue, too — but they wait until after the Court has granted review. “Tom’s method of discerning conflicts among the circuits is ingenious. My hat’s off to him,” says veteran advocate Charles Cooper of Goldstein. “But I am still not comfortable with cold-calling potential clients. We wait for the phone to ring.” Adds John Roberts, Jr., of Hogan & Hartson: “If I’m going to have heart bypass surgery, I wouldn’t go to the surgeon who calls me up. I’d look for the guy who’s too busy for that.” Harvard’s Laurence Tribe, who has a loose alliance with Goldstein for Supreme Court cases, says, “There’s a certain amount of hypocrisy” in the criticism of Goldstein. “If he alerts someone to a circuit split, he is performing a service by giving the Court an opportunity to review an issue of importance.” And Goldstein is getting the last laugh. After taking on his early cases for free, clients are calling Goldstein instead of the other way around, and he is charging for his services — though at rates below those of the big firms. Hiring Goldstein to take a case start-to-finish will cost about $75,000, and some of the fee might be contingent on success. The Supreme Court specialists are a mild-mannered bunch, by and large. Not a Johnnie Cochran or Gerry Spence among them, reflecting the Supreme Court’s vast preference for lawyers with nimble minds over lawyers given to grandiloquence. “Don’t make the jury argument!” Justice O’Connor pleaded with practitioners in a recent public appearance. “One thing that doesn’t work with this Court is a great debating style,” says Dellinger, a former acting solicitor general. “A focused but conversational style is what they want.” An Arkansas lawyer who brought an apple and a Bible to the Supreme Court as props for his argument in a tax case last term — he was arguing that his client had not yet bitten the forbidden fruit — flopped badly. A New York lawyer who cracked jokes and answered a Rehnquist question with a cheery “Yes, sir,” got a dressing-down from Rehnquist: “I suggest you adjust your entire demeanor toward this Court.” The lawyer won anyway. The circle of Supreme Court specialists also includes no women or minorities. Among nongovernment lawyers, no woman or minority member has argued more than two cases in the last five terms. “Why is this so? I don’t know. It’s just going to take time,” says Maureen Mahoney. A former Rehnquist clerk who heads Latham & Watkins’s appellate practice, Mahoney argued one case in the last five terms. “I certainly believe all the justices admire effective advocacy from women as much as from men.” But they sometimes don’t admire what women wear. As an assistant solicitor general, Beth Brinkmann has argued 12 times in the last five terms, more than any other woman. For a 1996 argument, Brinkmann had the temerity to wear a conservative brown business suit. Not long after, her then-boss Walter Dellinger got a note from Rehnquist reporting that the justices, who had apparently conferred about the matter, did not feel that brown was a suitable color. (This from a chief justice who wears gold stripes on each sleeve of his black robe.) Dellinger wrote Rehnquist back, defending Brinkmann and respectfully pointing out that not enough women had been in the SG’s office for long enough to establish a sartorial norm. Women in the solicitor general’s office were miffed at the episode, which was soon dubbed “Bethgate.” But they remained silent, and they acquiesced to the chief’s wishes. Defying the chief justice is not a good career move. Now the women of the solicitor general’s office wear black.

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