Over the last two decades, a dedicated Supreme Court bar has gained prominence, focusing on arguing the increasingly few cases before the justices each term. These lawyers face fierce competition in persuading clients to hire them, participating in a not-so-glamorous competition known in the industry as a “beauty contest.” At these lawyerly pageants, attorneys competing to take the case make their pitch and try to persuade the client that their firm is the best suitor.
In my new book, Unprecedented: The Constitutional Challenge to Obamacare (affiliate link), I go backstage and look at two of the most high-profile beauty contests in Supreme Court history: who would represent (1) the National Federation of Independent Business (NFIB) and (2) twenty-six states in their respective challenges to the constitutionality of Obamacare.
How did these litigants go about choosing their counsel? Which lawyers and law firms got passed over?
NFIB hosted their beauty contest first, after it became clear that they would likely win in federal court in Florida. They sought to hire a firm that would represent their interests, separate from the twenty-six states, in the Court of Appeals and eventually in the Supreme Court. Several leading appellate firms in Washington, D.C., were in contention, including Gibson, Dunn, & Crutcher; King & Spalding; Jones Day; and others. Initially, I was told by lawyers involved in making the selection, the case was “presumptively” going to Gibson, but after Jones Day’s pitch, which approached the case from the “ground floor,” NFIB changed its mind.
Karen Harned, executive director of NFIB’s legal center, told me she “didn’t really know the attorneys at Jones Day” before the interview, but was “blown away at the level of thought they had already given the case — a lot more than from other firms.” Harned was also impressed by the breadth of experience at Jones Day, which had recently hired a large number of Supreme Court clerks from both conservative and liberal justices.
NFIB did consider Paul Clement, who at the time was working at King & Spalding but would soon depart for Bancroft. Clement was “fantastic,” but “Jones Day had more resources,” Harned recalled. Ultimately, NFIB hired Jones Day, led by partners Michael Carvin, Gregory Katsas, and C. Kevin Marshall, and associates Hashim Mooppan and Yaakov Roth.
The second beauty contest would be held by Florida’s newly-elected Attorney General Pam Bondi, who had taken the lead for the twenty-six states challenging Obamacare. For Bondi, NFIB’s hiring of Jones Day “accelerated the decision to” hire new counsel.
At its beauty contest, Florida interviewed over a dozen potential Supreme Court advocates. Florida did not consider Ted Olson of Gibson, Dunn, & Crutcher, who was President Bush’s solicitor general and had argued Bush v. Gore and dozens of other cases before the Court. Despite his prolific record for conservative legal causes, Olson’s work in challenging the constitutionality of Proposition 8 and supporting same-sex marriage was a red flag and cause for concern among the Republican attorneys general. Otherwise, I was told, Olson “would have certainly been in the running.” Florida also considered Maureen Mahoney and Gregory Garre of Latham & Watkins, as well as Bartow Farr (who would ultimately be appointed by the Supreme Court to argue an issue the government abandoned).
Eventually, the contest came down to three finalists: Paul Clement of Bancroft PLLC; Miguel Estrada of Gibson, Dunn & Crutcher; and Chuck Cooper of Cooper & Kirk. Thankfully there was no swimsuit competition, so they went straight to the talent portion. Bondi flew to Washington to personally interview Clement. She “really liked [Clement’s] demeanor” and thought he “had it all.” With fifty arguments before the Court and an “incredibly eloquent” style, he was the “package deal.” There was “no question” that Clement, and his superlative associate Erin Murphy at Bancroft, would be the team. And he came with an attractive price tag: a flat fee of $250,000, to be shared by the twenty-six states.
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On Monday, September 16, 2013 at 6:00 p.m., the Georgetown Supreme Court Institute will be holding a panel discussion on how these high-powered Supreme Court litigators developed and presented their arguments to the Nine. Randy Barnett (Georgetown University Law Center), Michael Carvin (Jones Day), Gregory Katsas (Jones Day), Erin Murphy (Bancroft), Alan Morrison (George Washington Law School), and Paul Smith (Jenner & Block) will provide a look back at the litigation in NFIB v. Sebelius. Adam Liptak (New York Times) will moderate. The event will be followed by a book signing for Unprecedented. Please RSVP here. Check out other book tour events for Unprecedented here.
Josh Blackman is an Assistant Professor of Law at the South Texas College of Law, Houston, and the author of Unprecedented: The Constitutional Challenge to Obamacare.