With more and more parties hiring veteran advocates to argue Supreme Court cases, it appears that the court itself is following the trend: It also is hiring more court specialists than rookies to appear before it as “friend of the court.”
Several times a term, the court appoints lawyers to argue as amicus curiae when a party in a pending case no longer wants to defend the decision below, or in other circumstances, such as when a civil case has been brought by an indigent or non-lawyer appellant.
When that happens, the court has often appointed a former high court clerk to take on the case and make a debut argument before the justices. Former clerks John Roberts Jr. and Maureen Mahoney got their first arguments that way.
But in the last two years, the court has shifted away from that tradition somewhat, instead handing the plum assignment to more established advocates, with fewer going to first-timers. Eight out of 12 of the appointments by the Court during that period have gone to veterans.
The most notable symbols of this new trend are H. Bartow Farr III of Farr & Taranto and Robert Long of Covington & Burling, both named to argue orphaned positions in the landmark Affordable Care Act cases. Farr had 20 arguments under his belt, and Long had 17. Other experienced advocates who have been assigned oral arguments by the court recently include University of Kansas School of Law professor Steven McAllister, Harvard Law School professor John Manning and Gibson, Dunn & Crutcher partner Miguel Estrada. They had previously argued four, eight and 19 Supreme Court cases, respectively.
Just last month, the court appointed one veteran and one first-timer to argue in cases brought by non-lawyers involving the Federal Tort Claims Act: Millbrook v. United States, a prisoner appeal, and Levin v. United States, a dispute over a veteran’s medical care.
Both cases could have been opportunities for the court to give a recent former clerk a first-time chance at the lectern. In Millbrook, the court did just that, naming Christopher Paolella of Reich & Paolella in New York to represent inmate Kim Millbrook, whose petition to the court was handwritten. Paolella’s appointment followed the old pattern in another way: he formerly clerked for Justice Samuel Alito Jr., who happens to be the circuit justice for the 3rd Circuit, the source of the Millbrook case. Alito likely was instrumental in making the appointment.
But in the case involving Steven Levin, who sued after unsuccessful eye surgery at the U.S. Naval Hospital in Guam, the court went with a longtime advocate: James Feldman, a D.C. solo practitioner who racked up 46 arguments before the high court as an assistant to the solicitor general from 1989 to 2006. The former clerk to Justice William Brennan Jr. had his first argument in private practice in 2010 when he represented Chicago in the Second Amendment case McDonald v. Chicago.
For the court, Levin’s might have been a special case, requiring someone experienced in court procedure to represent him. In an email, Levin said the court may have appointed a lawyer for him because “I have been delayed in reaching an agreement for representation because there have been so many offers of pro bono representation that would cost me practically nothing by very highly qualified people.” He added that he was trying to engage the services of several advocates in hopes they would work together, and “the Court may have appointed an amicus curiae to act expeditiously to keep the schedule they have for now.” The case has been set for argument Jan. 15. Feldman did not return a call for comment.
The court has never explained its criteria or procedure for appointing counsel, who take on the assignment pro bono. The court pays only the lawyer’s printing costs and travel expenses for oral argument.
McAllister, the University of Kansas professor who also serves as the state’s solicitor general, has noticed the court’s trend away from appointing first-time advocates. “I suspect each case is somewhat unique” said McAllister, who was appointed by the court to argue in Bond v. United States last year. “There likely still is a desire to give former clerks their rookie’ experience with such appointments, but there also may be in some cases a countervailing interest that the issue is sufficiently important or complicated, or the situation so mixed up, that the Court then turns to a veteran rather than a rookie…. There is no way they could or would have appointed a rookie to step into the health care case.”
Mayer Brown partner Stephen Shapiro, a longtime expert on Supreme Court practice, agrees. “They look at the circumstances of each case, and in a very big case they may look to an experienced veteran.” In the 1983 jurisdictional case Keeton v. Hustler, the court appointed Shapiro to represent Hustler Magazine after its combative publisher Larry Flynt had disagreements with his previous attorney. Shapiro, then a recent veteran of the solicitor general’s office, was familiar with the case because he had written an amicus brief on Hustler’s side. Shapiro recalled, “I was asked to argue 48 hours before the argument date.” Hustler lost the case 9-0.
Tony Mauro is the U.S. Supreme Court correspondent for The National Law Journal, a Legal affiliate based in New York.
