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Scott Harris’ next job is out of sight — literally and figuratively. Harris, an Assistant U.S. Attorney in Washington, D.C., takes over June 10 as counsel to the U.S. Supreme Court — one of the least visible but arguably most interesting and varied in-house counsel jobs in Washington. The position is part general counsel, part law clerk, and part motions attorney for the nation’s highest court, bringing its occupant into at least occasional contact with the justices themselves. The counsel offers advice to the justices, when requested, about judicial ethics dilemmas. He or she also works with U.S. Attorneys when demonstrators are arrested on the steps of the Supreme Court, defends the justices when they are named in what are viewed as crackpot lawsuits, and plays an occasional role in the handling of death row appeals. The normally secretive Supreme Court is especially reluctant to talk about the counsel job. Neither Harris nor Jane Petkofsky, the departing counsel, were allowed to discuss the job for this column. “It is a very low-profile job,” says Richard Schickele, who held the post for the longest period, from 1984 to 1995. “The view was that that was the best way to serve the justices.” Schickele is now general counsel to the California Commission on Judicial Performance. “It really is part of the tradition of secrecy at the Court,” says David O’Brien, a government professor at the University of Virginia. O’Brien’s classic book on the workings of the Court, “Storm Center,” describes the functions of the Court counsel. For his most recent update of the book, in 2000, O’Brien contacted the office for the latest information. “It was the only office I had problems getting information from,” O’Brien recalls. A 1993 report on the Court’s legal office, published in Judicature magazine, cautioned that “this study is limited by the secrecy that envelops the third branch.” The authors also quoted — anonymously — one former counsel who said, “The less visible we are, the better work we do.” O’Brien also theorizes that there is some sensitivity about the counsel position because it cuts against the Court’s long-standing boast that its justices perform their judicial functions themselves, without the aides and factotums that assist other public officials. “Louis Brandeis would hate the idea of a legal office for the Court,” says O’Brien. The late Justice Brandeis once said the public respected Supreme Court justices because “we do our own work.” The counsel position was an innovation of the late Chief Justice Warren Burger, who sought to bring some of the administrative practices common in other courts to the Supreme Court. He originally envisioned the job as being similar to that of circuit staff attorneys or motions attorneys who provide an institutional memory for procedure and cases that goes beyond the customary one-year term of law clerks. The position quickly evolved into an office that works in many of the time-consuming dusty corners of the Supreme Court’s docket. Among them: lawyer discipline and disbarment cases, petitions by losing parties for rehearings, revisions of federal rules of procedure, assisting justices with circuit duties, analyzing motions filed with individual justices and providing continuity for original jurisdiction cases. The latter are suits filed by one state against another, usually involving border disputes, that can drag on for years. The legal counsel periodically briefs the justices on the status of the cases and is actively involved in analyzing their merits. The counsel also helps the Court comply with Americans with Disabilities Act requirements and other laws that affect federal workers. When the Court is sued civilly by an injured delivery person, for example, the case is handled by the counsel. When demonstrators are arrested, the U.S. Attorney’s Office in D.C. handles the prosecution, but the counsel is the Court’s liaison to the process. Not all of the office’s work is obscure. It helps prepare the agenda for the Court’s conferences and sometimes summarizes and makes recommendations on cert petitions, in the same way law clerks do. The Judicature article suggested that law clerks handle “normal” cases while the legal counsel reviewed “out of the ordinary” ones, though some more recent Court observers suggest that is less true now. One extraordinary case that involved the legal counsel was the 1974 Watergate case United States v. Nixon. Citing a memorandum in the late Justice William Brennan’s files, O’Brien says the legal office of the Court recommended ordering President Nixon to turn over secret White House tapes even before the Court of Appeals had ruled on Nixon’s claim of executive privilege. The office also, according to some, does initial screening of habeas corpus petitions, though there is a difference of opinion over the level of involvement. “We sometimes handled death penalty cases, but not always,” recalls Schickele. One of the most sensitive parts of the counsel’s work is in the area of judicial ethics, Schickele says. “Sometimes a justice would come to me and say, ‘I’ve gotten an invitation to do something with this group, and I have ethical concerns,’” says Schickele. But he adds that not all justices came to him. “Some justices had a lot of ethical questions, some I never heard from.” O’Brien reported in his book that in 1985, the legal office handled 469 separate matters — including 180 applications for rehearing, 96 memorandums on motions filed in cases docketed before the Court, and 90 memorandums on so-called original cases. O’Brien finally persuaded the Court to give him more information on the office, and in the new edition of his book he reports that, in 1997, the office handled 911 separate matters. The Court refused to break down the number into categories. Though Schickele was the Court’s counsel for 11 years, the more recent legal counsel have done shorter tours of duty — mirroring Chief Justice William Rehnquist’s practice of limiting the tenure of his administrative assistants to bring fresh blood to the Court bureaucracy. The job was advertised in March as a two-year commitment “with possible extension.” Harris, 36, has a broad range of experience in the U.S. Attorney’s Office and before that, in private practice. He graduated Yale University in 1988 with a degree in mechanical engineering and history, then went to the University of Virginia School of Law. He clerked for Paul Niemeyer, a judge on the 4th U.S. Circuit Court of Appeals, then went to D.C.’s Wiley, Rein & Fielding in 1994. He has been an Assistant U.S. Attorney since 1997, handling employment and tort claims cases. Late last year and early this year, he was part of the legal team defending Interior Secretary Gale Norton in contempt proceedings stemming from the Indian trust dispute before the U.S. District Court for the District of Columbia. Almost from the start, the Supreme Court legal counsel’s office has been a two-lawyer office — currently the second person is staff counsel Stephen Gura — and it apparently will stay that way. “The work keeps two people very busy,” Schickele says. “Besides, I felt it was necessary to have two people in the office,” he adds. “When you are working for the Supreme Court, you want to have another pair of eyes reviewing your work. I may be good, but I couldn’t cover everything.” DOWN THE TUBE It’s official: Both of this spring’s televised attempts at dramatizing the Supreme Court have fizzled. Officially, the ABC show “The Court,” starring Sally Field, is on “hiatus” after only three episodes, with three more episodes set to air sometime this summer. (In one of the upcoming shows, protesters release a flock of birds in the courtroom during arguments in an environmental case.) But it has not been renewed, even though its ratings were at times respectable. Likewise for “First Monday,” the CBS effort starring Joe Mantegna and James Garner, which had a much longer run — 13 episodes — but also suffered from adequate but declining viewership. Producers and others behind the shows have been unavailable for comment, but in the blame game that usually follows cancellations, fingers have pointed at scheduling problems, inadequate promotion, unbelievable plots and characters, and, most of all, the inherently ho-hum nature of the Supreme Court itself. “Fundamentally, the institution is boring,” says UCLA law professor Michael Asimow, co-author of the 1996 book “Reel Justice: The Courtroom Goes to the Movies.” “It’s a hopeless problem to jazz it up.” DEFENDING ‘APPRENDI’ The first of the Supreme Court’s three post- Apprendi decisions this term suggested that the justices are trying to scale back the importance of the controversial 2000 case Apprendi v. New Jersey — although there is no sign they are abandoning it completely. The Apprendi ruling, which said that any penalty-increasing fact in a criminal case must be proven to a jury, not a judge, has spawned hundreds of appeals, including some involving cases that were pending when Apprendi was decided. The Supreme Court on May 20 ruled on one such case, United States v. Cotton, No. 01-687. The justices unanimously decided that Apprendi error in a drug indictment is not reversible error, even if it affects substantial rights. The decision scotches dozens of appeals of pending cases under Apprendi. But strangely, the Court’s terse eight-page ruling by Chief Justice William Rehnquist barely mentions Apprendi, instead referring mainly to cases involving appellate jurisdiction over defective indictments. The Court’s seemingly ambivalent feelings about Apprendi were foreshadowed during the oral arguments in Cotton just six weeks ago. At one point during the April 15 oral argument, defense lawyer Timothy Sullivan of Sullivan & Sullivan in College Park, Md., was telling the Court why, in earlier stages of his client’s case, the Apprendi issue was not squarely raised. “None of us could ever imagine that the Apprendi case was forthcoming,” Sullivan said, asking the Court not to penalize his clients for “an error that we could never even imagine.” Justice Antonin Scalia, who turned out to be one of the justices in the 5-4 majority, interrupted, “Now, wait, wait, wait. It wasn’t that much of bolt from the blue. Nobody could imagine Apprendi?” As laughter filled the Court, Rehnquist — one of the dissenters in Apprendi — leaned forward and said, “The dissenters couldn’t imagine it.” Scalia, on the defensive, argued that Apprendi was based on a “long common law tradition,” and that the Court’s 1998 decision in Almendarez-Torres v. United States had foreshadowed the Apprendi ruling. “So, you know, out of the blue?” Scalia said. “No, no, no, no, no.” Sullivan, chastened, started to say, “Perhaps I overstated …” when Justice Stephen Breyer, also an Apprendi dissenter, chimed in, “No, I don’t think you did.” Justice John Paul Stevens, author of the majority opinion in Apprendi, remained mute. Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. Mauro can be reached at [email protected].

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