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Jeffrey Sutton had the U.S. Supreme Court term of his life last term: four arguments, four wins. It’s the kind of record he could build on this term and beyond in pursuit of a bright future among the best of Supreme Court advocates. Instead, Sutton has no arguments on tap, and he bides his time quietly in the Columbus, Ohio, office of Jones, Day, Reavis & Pogue, waiting for the Senate to act on his nomination to fill a vacancy on the 6th U.S. Circuit Court of Appeals. Back in Washington, D.C., John Roberts Jr. has spent the summer preparing for two Supreme Court oral arguments he fervently hopes he will not have to make. Roberts, like Sutton, has been nominated to the appeals bench — the D.C. Circuit, in Roberts’ case — and if the Senate confirms him, Roberts will hand the Supreme Court cases off to his colleagues at Hogan & Hartson. “I’d be delighted if I had to find someone else to argue,” says Roberts. But because of the uncertainty about when — or if — the newly Democrat-controlled Senate will act, Roberts says, “I’m just going about my business as normally as possible. I have to.” The elite Supreme Court bar is in limbo these days, an odd kind of stasis in which uncertainty abounds and futures are unfolding slowly. Carter Phillips of Chicago’s Sidley Austin Brown & Wood jokes that he is “waiting for the Senate to put my competitors in robes.” The suspended state has even affected the free agents of the Supreme Court bar’s farm team: the justices’ law clerks. Top Supreme Court firms report that this past term’s Court law clerks have taken longer than usual to decide where to work. Their brush with history in the form of sleepless nights drafting Bush v. Gore last December may have left them thinking their talents were in even more demand than usual, allowing them to take their sweet time. Or they may be hovering before landing, to see what happens next. At D.C.’s Wilmer, Cutler & Pickering, managing partner William Perlstein reports receiving a flurry of inquiries from former clerks — and from lawyers at the solicitor general’s office — soon after former solicitor general Seth Waxman gave the nod to Wilmer. Waxman was clearly the biggest catch among Supreme Court advocates in years. In addition to lawyers eager to follow Waxman, Perlstein notes, several potential clients have expressed interest as well. In his first week on the job, Waxman says he had to turn down three Supreme Court cases because of government ethics rules. At Chicago’s Mayer, Brown & Platt, the traditional Supreme Court powerhouse, University of Utah law professor Michael McConnell is also in suspended animation, waiting for the Senate to act on his 10th Circuit nomination. Meanwhile, six other Mayer Brown lawyers in search of a piece of the Supreme Court action have set up shop at a new firm — Robbins, Russell, Englert, Orseck & Untereiner in Washington, D.C. “We lost a couple of guys we liked a great deal,” says Stephen Shapiro, Chicago-based founder and head of Mayer Brown’s appellate practice. “But we’re working as hard as ever to get the cases.” Of all the Supreme Court advocates waiting for the next shoe to drop, Sutton is the one with the most affecting story line. The American Lawyer‘s latest tally of Supreme Court advocates places Sutton at the top among private practice lawyers last term. At age 40, he had enviable prospects for a bright future as a Supreme Court advocate. He loved arguing before the Court above all else and did it well, with a quick-witted, confident style of presentation that conveyed a boyish enthusiasm for the work. It may be that his love for Supreme Court advocacy will be the undoing of Sutton’s judicial nomination. As Ohio’s solicitor general and later at Jones Day, Sutton developed a specialty of arguing the states’ rights side of federalism cases before the Supreme Court. He also happens to believe in that point of view, but in some ways the specialty just developed, in the same way that others do. You get a case in one area of the law, you do well, attract others in the same area, and build from there. And you take any case that comes your way if it gets you before the Supreme Court. States’ rights can have a “softer side,” but it just so happened that the latest and one of the biggest states’ rights cases that came Sutton’s way, Board of Trustees of the University of Alabama v. Garrett, seemed anything but soft. It put Sutton in the seemingly hard-hearted position of arguing that disabled workers could not sue Alabama, or any other state, under the Americans with Disabilities Act. It earned Sutton undying opposition from the civil rights and disabilities rights communities. Sutton declined to be interviewed about the case, but it is unlikely that he thought twice before agreeing to represent the University of Alabama. If it meant arguing before the Supreme Court, Sutton was there. When the final story of Sutton’s nomination is written, one of the questions to ponder will be whether it was fair that he was skewered for being a zealous, effective advocate for his client. Lawyers sometimes win awards for representing unpopular clients, but Sutton’s reward may be defeat by the Senate. Of course, if the Senate rejects Sutton’s nomination, he may have the last laugh. Sutton will be able to return to the Supreme Court advocacy that he loves — sobered and wiser, but considerably wealthier and, probably, closer to where he was meant to be. Related Chart: The Elite U.S. Supreme Court Litigators

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