Paul Clement, SCOTUS, Solicitor General's Office, Supreme Court

A Mayer Brown Associate's Supreme Court Debut:A Post-Argument Recap

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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.

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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

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