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If Michael Newdow had hired a veteran advocate to carry on his fight against the wording of the Pledge of Allegiance to the U.S. Supreme Court, a document with the following title would never have been filed there: “Suggestion for Recusal of Justice Scalia.” Typed in an unconventional format, Newdow’s Sept. 9 “suggestion” reproduces news reports of a speech given by Justice Scalia in January, in which he made it fairly clear that he believes the only way to get the words “under God” out of the pledge is through legislation — not litigation. Newdow’s filing goes on to claim that because of Justice Scalia’s statements, “one might certainly reasonably question his impartiality.” A seasoned Supreme Court lawyer would have talked Newdow out of such a filing on the grounds that it would be futile, insulting to the Court (not just to Justice Scalia), and something that is just not done in practice. Of course, the Supreme Court expert would also have tried to talk Newdow out of his plan to argue the pledge case himself. Wise advice, to be sure. But Newdow’s brashness is refreshing in a way — and it has served him well so far. In October, Scalia surprisingly took the suggestion and recused himself, giving Newdow a much better chance of prevailing. His recusal filing in itself raised issues the justices should consider. The question of what judges should or should not say off the bench was Topic A at a recent Hofstra University Law School conference on judicial ethics. And in a sort of romantic way, it’s good that, even in this day and age, a zealot can take his or her case all the way to the Supreme Court — literally. On the other hand, the old maxim that lawyers who represent themselves have fools for clients has a lot of truth to it — especially at the Supreme Court level. That old saw will get a workout this term. Two named parties in Court cases plan to argue pro se: Newdow, in the pledge case (likely to be argued early next year) and Allan Favish in Office of Independent Counsel v. Favish, (set for argument Dec. 3). Plenty of warning signals are flashing in both cases that would discourage most plaintiffs from arguing them pro se. First and foremost is the fact that Newdow, from Sacramento, and Favish, from Santa Clarita, are California lawyers on a crusade. The Supreme Court does not usually warm up to crusaders. Newdow is a zealous atheist who believes that his daughter should not be subjected to the words “under God” in the pledge at her public school, even if reciting it is not mandatory. But the issue of standing has arisen; Newdow and the girl’s mother never married, and until recently the mother had sole legal custody. So at times in Newdow’s briefs and in interviews, he seems almost as intent on exposing the “egregious” family law system in California as he is on keeping church and state separate. Likewise, Favish seems to have other fish to fry besides convincing the Court that the privacy exemption of the Freedom of Information Act was not meant to protect the privacy of dead people. From his brief, full of gory details, Favish also seems intent on disproving the conclusion reached by Whitewater independent counsel Kenneth Starr and others that Clinton White House deputy counsel Vince Foster committed suicide ten years ago. One subheading in Favish’s brief: “Starr Concealed the Lack of Blood Spatter.” It is the government’s refusal to release some of the Foster death scene photographs under the FOIA that gave rise to the current case. But it is almost certain that in examining the case, the Supreme Court will be as uninterested in what really happened to Foster as it will be in Newdow’s custody woes — except as they relate to Newdow’s standing, an issue the Court has told the parties to brief. Factual disputes of the kind that may be front and center in the minds of zealous litigants usually are far from the concerns of the justices at oral argument, says veteran Supreme Court advocate David Frederick of Washington, D.C.’s Kellogg, Huber, Hansen, Todd & Evans. “The argument is rarely just about the case; it’s about all the other cases that may come down the pike after this one, if the Court rules a certain way,” says Frederick. Which is why Frederick believes that “the only time arguing pro se at the Supreme Court was a good idea was in the nineteenth century when the attorney general was sued on behalf of the government, and he argued the case.” Frederick continues, “The level of detachment for a Supreme Court argument is difficult to achieve if you are arguing on your own mission. What you gain in passion, you often lose in analytical objectivity.” Needless to say, Newdow and Favish disagree. “You’re allowed to have passion at the Supreme Court,” says Newdow. He asserts that his knowledge of the case — he has argued it successfully so far — makes it very reasonable for him to take on the case himself. “There is no one who knows this case better than me,” says Newdow, a licensed member of the California state bar since only last year. “There may be people who know the legal issues better, but I needed to get an atheist to argue this. I want me.” Favish also reminds skeptics that he is an appellate lawyer and argued his case before the 9th U.S. Circuit Court of Appeals. “This is what I do for a living,” says Favish, who is an associate in the Los Angeles firm Charlston, Revich & Chamberlin, but says the firm has nothing to do with the case. “I have no money to pay for someone else to do this, but even if someone volunteered, I wouldn’t trust anybody to know the record like I do.” Favish adds, “It’s not like I am arguing in my own traffic accident case or my own sexual harassment case. It’s not like I am emotionally involved.” So does he plan to touch on the flaws in the Vince Foster investigations when he stands before the Court? Favish says yes without hesitation — and with more than a trace of emotion. “It is definitely relevant,” he insists, arguing that exposing the inadequacy of the probes will demonstrate the public interest in obtaining the photos he is seeking. Only if he demonstrates a substantial public need to know, he asserts, can he convince the Court that the privacy interest in withholding the photos should take a backseat. He may have a point, and it may be that the Court should get a dose of Favish’s skepticism about the Foster probe so it can gain an understanding of why people really care about the FOIA. It might also benefit from hearing Newdow’s passionate distaste for the wording of the pledge. The Court is often isolated from the tension and deep emotions that drive the cases before them. But, for better or worse, the Court likes it that way. When Jennifer Harbury argued on her own behalf in last year’s Christopher v. Harbury, several justices seemed downright uncomfortable when she discussed her husband’s death, allegedly at the hands of the Central Intelligence Agency. His death was relevant to the case, to be sure, but the Court seemed to prefer a safer level of abstraction, and that would have been easier for them to reach if someone other than Harbury had argued her case. She lost 9 to 0, by the way. For the same reason, First Amendment advocates who are aligned with the positions taken by both Newdow and Favish are deeply worried about their plans to argue pro se. Their cases would be difficult enough to win if they were being argued by the best of the best Supreme Court advocates. If they argue on their own, it will be an adventure to see whether the Court rewards their foolish clients — or punishes them.

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