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Jenner & Block Associate Argues Her First Case – In the Supreme Court

Lindsay Harrison front steps SCOTUS.jpgLindsay Harrison at One First Street. Photo by Patrice Gilbert.

To paraphrase the controversial Campari ads at issue in Hustler Magazine v. Falwell (aka The People vs. Larry Flynt), everyone remembers “their first time” — arguing in open court, that is. It’s a rite of passage that all young litigators must go through. At large law firms, associates (or even junior partners) typically tackle something minor for their first oral argument — e.g., a non-critical discovery motion — and then work their way up the ladder.

But that’s not the case for everyone; some people start at the top. Meet Lindsay C. Harrison. She’s a fifth-year associate in the D.C. office of Jenner & Block, who just had her very first oral argument — which happened to be in the U.S. Supreme Court. On Wednesday, she appeared before the nine justices to argue the case of Nken v. Mukasey (or, technically, Nken v. Filip; more on the name changes later).

Read our interview with Lindsay Harrison, after the jump.

ATL: First things first. What did you wear? There has been some controversy over how women oral advocates should dress when appearing before the Court.

LCH: I wore a black pantsuit. I was not about to wear a skirt, since they dispensed with that requirement and permitted women to wear pants a few years ago. If women don’t take advantage of that opportunity, it sets a bad precedent. And I wore pearls — my concession to formality.

ATL: You must be one of the youngest people ever to argue before the Court. Have you done any research to figure out where you fall?

LCH: I’m definitely not the youngest. The woman who argued Roe v. Wade, Sarah Weddington, was 26 at the time. Tom Goldstein was 29 when he argued his first case. I turned 30 on January 5.

ATL: Okay, on to more substantive matters. Tell us a little bit about the case. What is the question presented by Nken?

LCH: When an immigrant in deportation proceedings has an appeal pending in federal court, what is the standard the court should use to decide whether the immigrant can stay in this country pending the decision in their case or whether they’ll get deported before the decision is made?

ATL: What’s at stake in this case?

LCH: The interest of my client is the same as many asylum-seekers in his position. He’s just been subject to error after error in the immigration court. He needs his day in federal court, where he can get a reasoned decision.

Think about all the people who have had their cases reviewed in the immigration courts, where decisions can often be arbitrary. It makes no sense to send them back to countries they’re fleeing from due to persecution, while they’re waiting for a [federal Article III] court to hear their case for the first time.

In particular, my client, Jean Marc, faces arrest, beating, and possibly even death if he is sent back to Cameroon, where he was a democratic activist.

ATL: Given what’s at stake, the fact that this was your first court argument, and the fact that it was in the Supreme Court, were you nervous? You previously told Am Law Daily that you were more excited than nervous. Was that the case on the day of the argument?

LCH: I was still surprisingly calm. I was making jokes until the minute before the argument started. Then I felt trepidation, when the justices walked in. You see the nine of them, and you’re standing right there in front of them. That moment is terrifying.

ATL: How did you prepare for the argument?

LCH: I did five full-dress moots, including one at Georgetown, one at Public Citizen, one at Akin Gump, and two internal ones at Jenner. There were usually about six people on each panel. On the first one I was a little shaky; the learning curve was pretty steep.

I did the last one on the Sunday morning before my Wednesday argument. Six partners in our appellate group came into the office, on the Sunday morning of inauguration weekend, to conduct my moot: Don Verrilli, Paul Smith, Ian Gershengorn, Bill Hohengarten, Jared Freedman, and David DeBruin. They all stayed for three or four hours. A fellow associate, Julia Martinez, participated as well.

The support from the firm has just been amazing. I don’t know how many hours as a firm we’ve billed, but I’ve billed at least 800 hours on this case, all pro bono. [Ed. note: The 800 hours includes the Fourth Circuit briefing; Lindsay didn’t bill 800 hours in eight weeks.]

ATL: How did you wind up with this case?

LCH: I took the case originally as a Fourth Circuit appeal, hoping to get an argument out of it. We get emails all the time about pro bono opportunities, and I responded to one. Jean Marc’s case seemed particularly meaningful because I felt the immigration courts had seriously erred.

In the course of briefing the Fourth Circuit appeal, we asked for a stay pending appeal. The Fourth Circuit had recently decided that they would apply a tougher standard for granting a stay [than most other circuits], which exacerbated an existing circuit split on the issue.

We then filed an application for a stay with the Supreme Court. The Court stayed my client’s removal, treated the stay application as a cert petition, and granted cert on the procedural question.

My client is still in detention. He has already been taken to the airport once. He could have been deported by now if we had not gotten a stay.

ATL: Reviewing the transcript of oral argument, it seems that some of the justices, particularly Chief Justice Roberts, were quite aggressive in their questioning. Did you feel they were tough on you?

LCH: In the courtroom, it was amazingly friendly. The transcript may read differently. The argument felt very much like a conversation you would have with anyone about a complex legal issue.

At the end of the argument, Chief Justice Roberts thanked both sides for our work on the case. The Court had ordered a very expedited briefing schedule: cert was granted on November 25, and the argument was on January 21, so we were working over the holidays.

ATL: What was your favorite part of the argument?

LCH: Having Justice Scalia tell me that I was right. [See tr. at 10:9: “That’s true.”]

ATL: Any other fun tidbits?

LCH: I can think of two. First, even though it was my first argument, it was [opposing counsel] Edwin Kneedler’s 104th Supreme Court argument — but his first as acting Solicitor General.

Second, the name of the case has constantly changed. At the time it was granted, it was Nken v. Mukasey [Michael Mukasey, Attorney General at the time]. When it was argued, it was Nken v. Filip [Mark Filip, Acting Attorney General at the time]. By the time it gets decided, it will probably be Nken v. Holder [Eric Holder, President Obama’s nominee for Attorney General].

ATL: After the argument was over, what did you do?

LCH: Well, first my girlfriend and I went to get a drink. Then the firm hosted a champagne toast, which was really kind and generous. It just shows what a family atmosphere we have here.

Jenner’s a really unusual place. How many firms would say to the associate who gets cert granted in a pro bono case, “that’s your argument”? There was no partner who expressed any reservation about an associate doing the argument — even partners who have been waiting a long time for their first Supreme Court argument, who would have been totally justified in saying, “Hey, can I take this one?”

After the champagne toast, we went out for drinks to Zaytinya, where we saw [proprietor and celebrity chef] Jose Andres. I explained to him that I had just had my first Supreme Court argument, and I invited him over to join us for drinks. So he did. [See picture below.]

ATL: Do you have a sense of which way the case will go based on the argument?

LCH: No, I don’t. I feel like I did the best job I could — but I don’t have a sense of how it will go.

ATL: Thanks for taking the time to talk to us. Congratulations on the argument, and good luck!

Nken v. Mukasey [ScotusWiki / SCOTUSblog]

Nken v. Filip: Oral Argument Transcript (PDF) [Supreme Court]

Supreme Court hears criminal procedure and deportation cases [Jurist]

Miami nonprofit joins effort to make deportations harder [Palm Beach Post]

Jenner & Block Associate Prepares to Make Supreme Court Debut [Am Law Daily]

Lindsay Harrison Jose Andres Zaytinya.JPGLindsay Harrison and Jose Andres, at Zaytinya.

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