Oral argument before the Supreme Court is ripe with dramatic possibilities. If you doubt this, check out Arguendo, the new work by Elevator Repair Service that just received a rave review from the New York Times. I saw “Arguendo” last weekend, before I participated in an on-stage conversation with director John Collins, and I was impressed by how well the play captures the drama, comedy, and even athleticism of appellate argument. (Buy tickets here — but act quickly, since they’re going fast.)
If oral argument is a form of theater, then the U.S. Supreme Court is Broadway — the biggest and best venue in all the land. And we’ve just learned about a brilliant understudy who will be making her debut at One First Street next month.
Expectations are running high for this talented protégé of a celebrated SCOTUS litigator. Who is playing Eve Harrington to Paul Clement’s Margo Channing?
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?
[W]e note that the document appears to be in 12 point font, not 13 point font. I’m pretty sure this specific topic was a point of discussion among all counsel prior to filing our respective briefs, and each party appeared to recognize the continuing 13-point font requirement.
Thus, we were surprised to receive the State’s 12-point font brief. The apparent failure to comply with the Court’s order had the effect of substantially increasing the State’s page limitations and, under the circumstances, prejudices the United States.
* AOL’s attorneys at DLA Piper sent a nastygram to a Maryland blogger, alleging intellectual property infringement, based on the blog’s aggregation. Because you know, AOL/the Huffington Post has never aggregated anything. [Maryland Juice]
* Speaking of DLA Piper lawyers, just before she was found guilty of public intoxication, partner Laura Flippin was also accused of lying under oath by the judge in the case. In short, things did not go as well they could have. [The Flat Hat]
* Remember the law school martyr Phillip J. Closius? He may no longer be Dean of University of Baltimore Law, but he has not finished his crusade to improve the financial security of students. Keep fightin’ the good fight, Phil. [Baltimore Sun]
* Congratulations to the 15 firms that made the NLJ’s 2012 Appellate Hot List. Most are Biglaw shops, but three elite boutiques made the cut: Bancroft, Horvitz & Levy, and Kellogg Huber. [National Law Journal]
During the United States Supreme Court arguments over Obamacare, the nation got a rare treat: the chance to see (or at least hear) Paul Clement in action. Clement, a former U.S. Solicitor General and current partner at Bancroft PLLC, delivered a brilliant performance before the justices, a veritable master class in appellate advocacy. As Carter Phillips, a veteran SCOTUS litigator himself, told us here at Above the Law, Clement “did a spectacularly good job” and “was just on his game… over a much longer period of time than most of us are required to do it.”
But even Clement couldn’t save Section 3 of the highly problematic Defense of Marriage Act (DOMA) from going down to defeat in the First Circuit. Before a panel with a majority of Republican-appointed judges, in fact.
Let’s find out who was on the panel, whether there were any dissents, and what the court concluded….
In a development that should surprise no one, the U.S. Supreme Court this morning agreed to review the constitutionality of President Barack Obama’s signature policy achievement, the Patient Protection and Affordable Care Act — aka Obamacare. This means that, before the end of the current SCOTUS Term in summer 2012, Anthony Kennedy the justices will rule on the validity of this sweeping legislation (unless they avoid the question on jurisdictional grounds, as Judge Brett Kavanaugh of the D.C. Circuit recently did — a path that might appeal to Justice Kennedy, as suggested by Professor Noah Feldman, and a path that the Court itself highlighted by mentioning the jurisdictional issue in its certiorari grant.)
In the meantime, there will be a lot of cocktail party chatter about the health care reform law and its constitutionality. If you’d like some quick talking points, for use when you get the inevitable “What do you think about this as a lawyer?” questions from friends and family at Thanksgiving, keep reading….
* When Elie read Megan McArdle’s response to his debt story, he screamed, “I said I PAID my federal loans!” I told him the screen couldn’t hear him but he kept right on screaming. [The Atlantic]
* A few highlights from the Sarah Palin email dump. [Wonkette]
* A lap dance might get a rise out of a recipient, but it doesn’t rise to the level of art, according to a New York state appellate court. [Albany Times-Union]
* The new home of Paul Clement — Bancroft PLLC, founded by Viet Dinh — has become D.C.’s “it” firm with respect to conservative causes. Where does it get its name? [Bloomberg BusinessWeek]
* Speaking of the former Solicitor General, here’s his substantive defense of the Defense of Marriage Act (via Chris Geidner). Check it out — there’s a link to his brief — and see what you think. [Poliglot / Metro Weekly]
* Speaking of gay marriage, here’s an interesting legal issue, involving foster care and adoption, same-sex couples, and religious freedom. [Peoria Journal Star]
Paul Clement and John Boehner: now out of King & Spalding's hair.
Some people, including crisis communications experts, think that King & Spalding should just shut up already about the DOMA debacle. The firm agreed to represent the House of Representatives in defending the controversial Defense of Marriage Act, and then almost immediately turned around and withdrew from the representation. This prompted the departure from the firm of star appellate litigator Paul Clement, former Solicitor General of the United States, who took the DOMA matter over to his new firm, Bancroft PLLC.
The decision to drop DOMA defense also led to the defections of King & Spalding clients, like the NRA and the state of Virginia. It generated criticism of the firm from diverse quarters — everyone from Ken Cuccinelli to the New York Times editorial board. [FN1]
Despite the advice of the communications experts (with which I personally agree), King & Spalding continues to discuss the DOMA debacle. The firm is starting to sound like a therapy patient that won’t relinquish the couch, and just wants to yap and yap and yap. Are you listening?
Let’s look at the latest revelations — and also some compensation news out of K&S….
Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past six years. You can reach them by email: firstname.lastname@example.org.
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