A Mayer Brown Associate’s Supreme Court Debut:
A Post-Argument Recap
As we mentioned earlier this week, Steve Sanders — a fourth-year associate at Mayer Brown, no relation to the 90210 character — argued before the U.S. Supreme Court on Wednesday.
When we emailed him on Wednesday to set up an interview, we received this rather straightforward Out of Office message:
I’ll be traveling on client and professional business Monday, 11/2 through Saturday, 11/7. I will have access to email, but my response may be delayed. Thanks.
How modest! If we had been in Sanders’s shoes, we would have used this Out of Office auto-reply:
Oyez, bitchez!!! Today I’m arguing before the freakin’ Supreme Court of the United States.
Later, haters!!!
But that’s not Steve Sanders’s style. He is dignified and professional, as we discovered when we caught up with him by phone after his argument.
We spoke by phone with Steve Sanders shortly after his SCOTUS argument. He was at Circa in Dupont Circle, enjoying a late, alfresco lunch (a salmon Caesar salad and a bowl of gelato). He was dressed casually, in jeans, a hoodie, and flip-flops. It was a bit chilly for flip-flops, but Sanders was under one of those big heat lamps.
Of course, Sanders didn’t appear before the justices in flip-flops. In response to our first and most important question — “Whom did you wear?” — he said he acquired a new Armani suit, gray with white pinstripes, for the occasion. Sanders told us that he’s not much of a suit guy, but obviously he didn’t have much of a choice for this august occasion.
Sanders was lunching solo. No big lunch with the Mayer Brown team and the clients?
“No,” Sanders said. “Last night I had a nice dinner, with the partner who worked on the case with me and the clients. But this morning, after we chatted on the courthouse steps and did some media interviews, everyone went on their way. I find that, after an intense experience like oral argument, it’s good to have some ‘alone time’ to decompress.”
So how did the argument go? “Ask me in three or four months after the Court issues a decision!”
Turning more serious, Steve Sanders noted that the AP story about the argument suggested a split Court — as opposed to stories along the lines of “the justices seemed extremely skeptical at argument towards side X” (not good if you’re representing side X).
Said Sanders: “The coverage [some collected here] indicates a closely divided court struggling to make up its mind on this question — not just what it means for the parties in this case, but for the law of immunity and for the lay of the land for lawsuits against prosecutors in the future.”
(To read more about the case of Pottawattamie County v. McGhee, which presents questions concerning the scope of immunity for prosecutors, see ScotusWiki.)
Was Sanders nervous arguing before the nine justices?
“No, I don’t think I was,” said Sanders. “I felt pretty serene last night and this morning. My hands weren’t shaking; I wasn’t sweating. Once you stand up and the questions start coming, the whole experience is just kind of a blur…. The time goes by so incredibly quickly.”
Did any of the justices give Sanders a hard time at argument?
“I don’t think anyone gave me a gratuitously hard time,” he said. “Sometimes you read about justices pounding away at an advocate, but in my case they asked skeptical questions of both sides…. I had encountered more skepticism and hostility in my moot court sessions than I did today.”
In our earlier post, we wondered if Sanders was going to argue without notes. In the end, Sanders brought notes up to the podium with him, but barely used them:
I argued with very few notes. I had the text of maybe a forty- or fifty-word opening statement typed out that I had more or less committed to memory, and one page in outline form with four major points and maybe three or four subpoints, short bullet points under each point. As a practical matter, I didn’t look at them.I thought seriously about doing it without any notes. What I noticed in my moot court sessions was that I brought up notes but never referred to them anyway. But you still like to have something to look down at in case you have a moment without questions.
And how did Sanders snag a coveted SCOTUS argument?
It was a case of creating opportunities for oneself in light of Mayer Brown’s entrepreneurial firm culture, said Sanders. While the case was in the Eighth Circuit, he became the person most knowledgeable about the immunity issues. When the time came for the Eighth Circuit argument, Sanders put himself forward as the person best situated to handle the argument, given the issues presented — and received no pushback from partners or the client.
“I don’t look like a 25-year-old,” added Sanders, who had a prior career in university administration. “Maybe if I did there would have been a different outcome. I had also done several oral arguments before that.”
So Sanders handled the argument in the Eighth Circuit. And even though the Eighth Circuit ruled against his client, Pottawattamie County, two factors gave the client confidence in Sanders and his ability to handle the Supreme Court argument.
First, there was a state-law immunity issue that the Eighth Circuit initially ruled against the county on. Sanders took the lead on the petition for rehearing. The court granted the petition and reversed itself on the state-law immunity issue, coming around to the position of Mayer Brown’s client.
Second, after the County lost in the Eighth Circuit, it authorized a petition for certiorari. Sanders drafted the successful cert petition — which also resulted in a stay on the lower-court proceedings issued by Justice Alito.
Once Sanders succeeded in securing cert, it started to look very much like “his” argument. “To the firm’s credit, the idea never occurred to anyone to take the case away from me,” said Sanders. “I had done the briefing at the cert stage and understood the case more intricately than anyone else. It didn’t make sense for someone to get up to speed on it.”
A fun factoid: Sanders is not yet a member of the Supreme Court bar. He had to argue pro hac vice, i.e., with the Court’s permission for this particular argument.
Why couldn’t he gain admission? He’s too much of a legal “Doogie Howser.” Sanders doesn’t have the requisite years of legal practice:
I graduated law school in 2005, but I clerked for a year. Always being a procrastinator, I decided to sit for the bar after my clerkship. The required experience [for Supreme Court bar admission] is three years in practice. My date of three years in practice will be November 13, putting me about nine days short. So I had to be admitted pro hac vice.
Fortunately, getting admitted pro hac vice was “no big deal” (as a certain ATL commenter might say). It did require consent from opposing counsel — in this case, former Solicitor General Paul Clement.
Clement agreed — and sent Sanders a very nice note, saying something along these lines: “You’ll have the distinction of not only relying on an opinion by Chief Judge Easterbrook, but joining him in the ranks of attorneys who have argued pro hac vice.” (Apparently Frank Easterbrook argued pro hac vice for some part of his time in the Solicitor General’s office.)
Was Sanders surprised by any aspect of his Supreme Court experience?
It was interesting to discover how relatively informal the Court is, and how genuinely nice and helpful the people are in the Clerk’s Office and the Marshal’s Office. Their docket is so small, so they can give you personal attention. In other courts’ offices, you get the impression that they’re trying to hide the ball or don’t particularly like the attorneys they deal with. I found here that I could always call the Clerk’s Office and they were always very helpful.
Now that the argument is over, what’s next for Sanders? Is he going to Disneyworld?
Alas, no. Although he did go out to dinner that evening with friends from law school, some of whom attended the argument, an appellate lawyer’s work is never done.
“I have three new cases to work on that are just getting started,” Sanders told us. They include an amicus brief in a Ninth Circuit appeal, an appellee’s brief in a Sixth Circuit case, and an amicus brief in a Supreme Court habeas case.
Congratulations on the argument, Steve — and good luck as you wait for the decision!
P.S. One final interesting tidbit. Steve Sanders is an openly gay lawyer who has worked on a number of LGBT causes (as you can see from his personal website). Lindsay Harrison, another Biglaw associate who argued before the Court recently, is also out and has litigated LGBT rights cases (e.g., Lawrence v. Texas).
It’s highly unusual for a Biglaw associate to argue before the Supreme Court. Of the two that we’re aware of in 2009, both are gay. Why are LGBT lawyers so awesome?
Mayer Brown Associate Makes Debut Before Supreme Court [Appellate.net (linkwrap)]
Earlier: Mayer Brown Associate Makes His Supreme Court Debut
Jenner & Block Associate Argues Her First Case - In the Supreme Court
Update: Jenner & Block Associate Scores SCOTUS Win
(65) Comments
Comments
First to watch Shafeef and Kash defy the law of gravity.
It's okay! I'm a limo driver...
JaKe and PE are both poor yet claim to be wealthy. Kash is crazy rich yet demurs whenever confronted with the subject.
Two paragraphs into to this gushing Lat article I knew the guy had to be gay.
As I was reading this post, I was sorely disappointed by its lack of victim-eering.
Fortunately, near the end of the post, I found the pot of gold at the end of the rainbow: Sanders is gay; LGBT lawyers rule.
As Lat astutely observed, homosexual lawyers rule, not because of their accomplishments as advocates, but because of their status as homosexual lawyers.
If there's one takeaway from the teachings of the late Martin Luther King, it's that we judge men by their sexual preferences, not the content of their character.
Carrie Prejean does not approve of this article.
Be cool on this...
Carrie Prejean in "Lunching Solo"
What a really good, nice guy. Sounds like he deserves this.
This was a good article. I would like to see more of this on ATL.
Dahlia Lithwick: "Stephen Sanders, an associate at Mayer Brown, represents the two prosecutors this morning. He garners—by my count—five questions that begin with the phrase 'that makes no sense' or something to that effect. " Ouch.
Wake up guys - Cleary matched Cravath - WSJ is way ahead of you
I don't care if Sanders is a homosexual, he is going to lose by at least 6-3.
It would take such an amoral person to represent two prosecutors who put two innocent men in prison when they knew all along they were innocent.
Were either of the two prosecutors he represented also homosexuals?
I'll be he was real proud to admit the two prosecutors have been exposed to any type of punuishment for their criminal conduct.
I was not a fan of Sotomayor and don't think she is qualified to be on the Supreme Court, but I do admit that she stood out in a positive way during oral arguments.
Umm, hello - who gives a sh$t about a gay lawyer - its bonus season!!
13,
...have not been exposed to any punishment...
13
Kathleen Sullivan
gratuituous LGBT lawyer reference
Lat,
Which stall did you and Steve use at Circa.
Good for him. He seems like a good ("kid"? I don't think so, given his years of real-world experience). Even if he loses, he sounds like a class act.
BTW, who gives a damn about his sexual orientation? Hopefully, none of the lawyers who frequent this discussion board do.
I read the transcript, too. While I though I could do better, I wasn't there. And all things considered, I'll never be. Good job, Atty. Sanders, and congratulations!
-- ET!
Of course he's dignified and professional. That's why he is the one arguing before SCOTUS and you are the one writing the story about his accomplishments.
I agree with some of the comments above. These insights into the personal aspect of the courts and profession are the reason I visit this site. Keep them coming and congrats to Mr. Sanders.
Once Lat said Sanders was eating a salmon caesar salad at a Dupont Circle cafe, it probably rendered the P.S. unnecessary.
12, 14 - Look at the post above this one on the home page.
ATL pwnd the WSJ on the Cleary news - look at the timestamps.
Lat, you should know that gay days at Disneyworld aren't until the first week of June.
13 = Jealous HaTTTer
24,
You think Sanders would be defending these corrupt prosecutors if the wrongfully convicted men were homosexuals rather than black?
I don't think so.
13
I thought the article was fine, until I cliked on his "website"....
Who puts up an entire website to say "I'm awesome and now you will read my accomplishments and know how great I am!" Fine for a solo practicioner, but so very bogus for someone who works at MayerBrown.
I hope a partner does the right thing and knocks him down a few notches...
the comments are usually to say nasty things about minorities and Elie's weight, but I just wanted to chime in and say this was one of my favorite things that I have ever read on this site. I think I would hire Sanders just based on this interview.
90210!!!!
I 8 A 4RE
Great interview and Steve sounds like a really cool guy. More stories like this please.
Our lives are hollow. Aren't they?
I didn't know he was openly gay. Since it is obviously such an important fact to get out there, how do I do this at my new firm? Do I send a firm-wide email stating that I am openly gay? How do I make opposing counsels, co-counsels, and judges aware of my openly gay status? Do I introduce myself that way; "Hi, I'm XXX and I'm openly gay"? Do Invite my partner to visit me at the office and kiss him on the lips at the reception desk? Do I wear a pink tie everyday? Do I dress in drag? Do I flounce around and call everyone "honey" or "Mary"? I never knew it was so important to my legal career to have everyone know that I am openly gay .Thanks. Lat and Steve.
I know Steve Sanders, and he is completely down-to-earth, classy, and unpretentious (as well as brilliant, obviously). The fact that he is gay has nothing to do with his superiority as a lawyer or as a human being, and I'm not sure it was necessary to mention in the context of this particular achievement (whereas it may have been had the story been about his work on LGBT causes, or his scholarship relating to LGBT rights). Doing so just provides fodder for all the sour grape-eaters who never in a million years will argue a case in front of the Supreme Court--let alone doing so as a fourth year associate.
Bravo, Steve!
32,
I wouldn't say being told your argument makes no sense is much of an accomplishment. Fact is, he is going to lose big. I read a post from someone who was there and Sanders apparently wasn't very good.
Granted, he has a pretty bad set of facts and scumbags for clients. An honorable attorney would have told them to find someone else even if it meant not having an opportunity to argue at the US Supreme Court.
Did you ever consider the possibility that maybe part of the reason he was selected was because no one else wanted to defend the prosecutors. If so, those individuals have my respect; but not so for Sanders.
He will lose by a 6-3 or worse margin. He may only get Roberts on his side, but he might even lose him.
All this praise of Steve Sanders blatantly ignores the fact that he has spent rather a lot of time using his alleged brilliance to argue in favor of absolute immunity for prosecutors who knowingly put an innocent man in jail.
He and John Yoo should spend some quality time together in hell. And ATL should have higher standards.
34,
I agree with you.
When I was young and ignorant, I used to think poorly of criminal defense attorneys. That changed when I started dealing with prosecutors, who make defense attorney look like paragons of virtue.
Sanders is just as sleazy as his clients, or worse since he knew they were scumbags and still agreed to represent them.
GO TEAM!!!
NAMBLA Staff Attorney.
Went to law school with Steve. Great guy. Congratulations Steve!
37,
He's going to lose; and it won't be as close as some think.
A great guy would not be representing these clients.
Lat,
What's it with you and Disneyworld and homosexual lawyers that argue at the Supreme Court? You've done it twice.
This guy is a whole other level of bad compared to the typical criminal defense attorney. The defense attorney might try to convince you that his client isn't really guilty of rape or whatever -- but at least he doesn't argue that all rapists should be absolutely immune from punishment. Steve Sanders shamelessly argues that all lying prosecutors should be absolutely immune.
I don't think badly of most criminal defense attorneys for doing what they do. But I'll sure as hell think badly of Steve Sanders. And if some people who know him find him to be a "great guy," that just shows how little likeability sometimes has to do with integrity.
Lithwick's article asks, "Does the Constitution protect prosecutors who fabricate evidence?" Which just goes to show that lots of cutesy snark can hide the fact you were too lazy to read the briefs and don't know what you're talking about. There is no claim in the case that the Constitution protects the prosecutors. The question is whether the Constitution provides the plaintiffs any cause of action that is not blocked by the judge-made doctrine of absolute immunity, which the Court, not the prosecutors in this case, invented.
Really good article. More of this, please, Lat.
I don't understand the comments attacking Steve because you don't like his clients' position on the merits of the case.
You guys most be law students. Real lawyers know that lawyers don't always represent the guys with white hats in real life.
Also, for purposes of this appeal, the prosecutors accepted the accusations against them as true. They will contest them when this case goes back to the trial court.
33 - "An honorable attorney would have told them to find someone else even if it meant not having an opportunity to argue at the US Supreme Court."
Good luck with your contracts final and legal writing memo.
41,
I read the briefs; did you? While the constitution doesn't protect prosecutors from fabricating evidence, neither of the two prosecutors have been prosecuted for their crimes or even disciplined by their state bar associations. How to you explain that away?
Sanders had to admit that they have suffered no consequences for their crimes. If the prosecutors win, it will be a signal that all prosecutors can frame innocent people for crimes and get away with it.
The real issue in this particular case is whether a prosecutor who committed the violations in his role as an investigator can be held civilly liable if he is also prosecutor at trial.
Sanders had to admit that if another prosecutor would be liable committed the same violation and turned the material over to the prosecutor actually working the trial. What Sanders failed to do was distinguish how the trial prosecutor is not liable for his actions not directly related to the judicial process. If a cop can be held liable for investigative actions, so can a prosecutor. Remember, it is function and not job title that determines liability.
43-
In this case, the prosecutors did not just accept the accusations as true, they were deeply involved in the case fabricating evidence, coaching witnesses to change their testimony to fit with their theory of the crime, committing blatant Brady violations, ignoring compelling evidence that another person committed the crime and deliberately convicting two innocent men.
The prosecutors may have accepted the allegations as true on appeal, but that is not the same as a denial of the allegations. The facts are clear, they committed the violations and no reasonable person can reach a different conclusion.
I'm sure he's personally a nice guy - but why all the flattery? He really wasn't a great oral advocate AT ALL - as I said monotone, and often confusing the justices. You should do a piece on Clement, a true superstar.
46,
I read the transcript, and Clement was far superior, although he missed a great opportunity to nail his case on Page 39, line 21.
Sanders was very weak, but he had a weak case. I fear for the liberty of our citizenry if the prosecutors prevail in this case.
I agree. If Sanders wasn't a homosexual, this article would have never been written. Why else would his orientation be mentioned?
43:
I am not a law student. Not all "real lawyers" refuse to take moral responsibility for their actions. You're just trying to make yourself feel better about your own career.
And there's a difference between defending a guilty client and advocating a principle that says a particular type of crime should always go unpunished. This is the latter, and it is not something most attorneys do.
46 -- Yes, let's do a story on Clement, the glib, overly-chummy-with-the-justices advocate who argued on behalf of the Bush administration to eliminate habeas and allow prisoners to be detained without charge indefinitely -- and got his ass kicked by the Court every time he stated that case.
Our lives are hollow. Aren't they?
I can't believe I'm posting, but . . . holy christ with the sanctimony about whether this guy should have made this case.
There's a freaking reason for the doctrine of prosecutorial immunity. Yes, it comes with costs. The Court (and presumably this lawyer if he has an ounce more sense than the people posting here) ACKNOWLEDGES that it comes with costs. But it also brings crucial benefits.
This case is about where to draw the line, and how to balance those tradeoffs. EITHER WAY you draw the line will have costs. That the costs of a hard line are extremely salient in this particular case doesn't mean that the hard line isn't the legally -- or even morally -- right one from a *global* perspective (you know, the one that courts are supposed to take?). This is just the case where the costs of the rule (if it were adopted, which I bet it won't be) would be most salient.
Yes, this guy likely has the weaker argument in this particular case. But that doesn't mean it's not a discussion worth having, or a case worth litigating -- on either side. And it *certainly* doesn't say anything about whether he is, or is not, a decent guy.
Just, ugh ugh ugh on all the juvenile posturing. Sophomore year is over.
Steve was the main guy from my law school that I could really see ending up on the SCOTUS bench one day. He's smart with a great demeanor.
I LOL'ed all over this post. "Oyez, bitchez!" Love it.
52: "There's a freaking reason for the doctrine of prosecutorial immunity."
Yeah, the reason is because a lot of judges are former prosecutors.
OK, OK, I admit it's a little more complicated than that, but fuck off with the desiccated cost/benefit language. We're talking about absolute immunity for prosecutors who intentionally framed someone and made him spend years in jail. You sound like you have an abacus where your conscience should be.
Okay, 55. Instead of participating in the fraud in this way, the prosecutor presents evidence he KNOWS to be fraudulent (but had no hand in gathering/generating). Hell, he doesn't just KNOW it, he is *delighted* that it's fraudulent. He *wants* it to be fraudulent, and he *knows* that the guy is innocent. He could not be more pleased as pie to introduce this fraudulent evidence. Hell, he goes to happy hour and buys everyone a round to celebrate, announcing that he's just convicted an innocent guy.
Outcome? IMMUNE. Why? Why shouldn't we "fuck off" with that result? Why has that rule been adopted by our system? ***Precisely because of "desiccated cost benefit" reasoning, you anti-intellectual know-nothing.***
The ginned up moral fervor over a lawyer's work on a case that is about gradations of line drawing in an area where we've already CONCEDED that there will be costs is . . . it's intellectually dishonest in the extreme. Argue till you're blue in the face that it's a wrong outcome, that we sould change the law, but to strut and puff and scorn othis guy for arguing about one application of a doctrine that was created (*knowing and notwithstanding* its costs) to protect a crucial social function from groundless nuisance suits? Weak tot action.
And I say this as someone who couldn't possibly disagree more with the prosecutors' argument here.
56,
The reason this case is before the USSC is because prosecutors virtually never get prosecuted for framing someone for a crime they did not commit.
What is the motivation for a prosecutor to play by the rules when they know they will not be held accountable for their criminal actions? These two prosecutors have yet to face any consequences; not even bar association discipline.
Just try to get a US Attorney to prosecute a corrupt judge or prosecutor. They only do it when the publicity is so great that doing nothing, like they usually do, becomes untenable. They never do it because they want to. They do it becaue they have no other choice, and even then it is for a minor violation and almost never results in prison time.
I am not a Sotomayor fan - just the opposite - but I am glad she is on this case because she is going to rule against the prosecutors.
Dear 57,
Civil liability. **Civil**. The whole reason for the doctrine is civil liability.
The real point isn't protecting wicked prosecutors from getting thrown in jail, it's protecting thousands of good prosecutors from millions of baseless suits by guilty convicts trying to wreak legal havoc because they have nothing else to do.
Sincerely,
56 (who hopes these prosecutors lose at the SCt, lose back at the trial level, get nailed for millions and millions in damages, get disbarred, and never live down the shame they have wrought . . . but who still thinks it's empty posturing to call their appellate attorney morally blameworthy for advocating re the proper scope of a legally uncontroversial principle)
I'd have moral qualms being a staff attorney for
NAMBLA.
If I were an MD--my practice area would not be on late-term, partial-birth abortions.
There are choices to be made--and morals or lack thereof inform said choice and illuminate one's character.
58,
I don't think we disagree. I was just adding my comments to yours.
56
55 here, responding to 56.
You say that prosecutorial immunity was created to protect a crucial social function from groundless nuisance suits. You seem to take it as axiomatic that the benefits of the doctrine outweigh its costs.
I say the doctrine was created because, essentially, the legal system is run by lawyers for their own benefit. And I don't think we have much empirical evidence concerning whether the benefits outweigh the costs.
We have no real idea how much outright fraud is committed by prosecutors (or other actors in the justice system), nor how many years are spent in jail by innocent people as a result. The existence of prosecutorial immunity makes it harder to find out about such instances.
It's not like this doctrine was adopted after careful study of the pros and cons by unbiased researchers. And it's not like one can't come up with alternative policies that would block many frivolous prisoner lawsuits without conferring absolute immunity.
Since I doubt the "costs" and "benefits" can really be quantified or compared here, I'm going to refrain from applying dry public-policy language as if we were talking about taxes or something, and instead let myself be guided by a basic sense of right and wrong.
It is morally repugnant that there should be a doctrine that not only protects lying prosecutors from being held responsible for their actions, but also announces to them in advance that there will be no consequences so they should go ahead and fabricate evidence as they see fit.
(To be clear, I do realize that Steve Sanders was only arguing in support of the application of the generally well-established doctrine of prosecutorial immunity to one particular scenario, whereas my comments are basically attacking the whole doctrine (and Sanders personally).)
61,
I'm 57.
I agree with all you comments.
This case is really pretty simple. The prosecutors were acting in the role of an investigator when they fabricated the false evidence and suborned perjury. It was not a simple case of the prosecutors simply using the evidence they were provided by the cops.
Couldn't he pro hoc in based on the fact that he's probably older than half of the Justices?
63,
It's "pro hac", jack.
63,
It's "pro hac", jack.