Samuel Alito, SCOTUS, Supreme Court, U.S. Attorneys Offices

And This Is Why God Made Appellate Lawyers

Justice Alito shows his sense of humor.

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What is life like after being an assistant U.S. attorney? By some accounts, job prospects for former federal prosecutors aren’t what they once were.

But at least you get invited to nice parties. Last night, I trekked out to Mayfair Farms in West Orange, New Jersey, to attend the 225th Anniversary Gala for the U.S. Attorney’s Office for the District of New Jersey.

I wanted to see old friends and former colleagues, of course, but I was also drawn to the federal judicial star power on the evening’s program. After welcoming remarks from U.S. Attorney Paul Fishman and an excellent documentary about the office’s history (written by AUSA Marion Percell), we got to hear from two of the office’s most distinguished alumni: Judge Maryanne Trump Barry of the Third Circuit, and Justice Samuel A. Alito of the U.S. Supreme Court.

Judge Barry, the older sister of real estate magnate turned presidential candidate Donald Trump, is one of my favorite judicial divas. Last night, however, she was not as diva-licious or controversial as I was expecting. For example, she made no allusions to her little brother’s polarizing presidential bid. (But Paul Fishman did in introducing her: “Some people want our next president to be a woman. Some people want our next president to be a Trump. Ladies and gentlemen, I present to you the next president of the United States: Judge Maryanne Trump Barry!”)

In her remarks, Judge Barry emphasized themes of public service and humility. She spoke about how nervous she was when she first started work as an assistant U.S. attorney, confessing that when asked to write her first appellate brief, “I didn’t know what an appellate brief was!” At her first oral argument, during the defense counsel’s eloquent presentation, she panicked and wrote a note to her supervisor sitting next to her: “What do I say?” He advised her to get up, introduce herself, and argue that the evidence was overwhelming. When she did that, Judge John Gibbons responded by saying, “Frankly, counselor, I am underwhelmed.” It was not her finest hour.

But with hard work, and the help of a great mentor — chief of appeals John Barry, whom she later married — she got better over time. She served as chief of appeals herself, and then as first assistant U.S. attorney, before her appointment to the federal bench.

After Judge Barry, we heard from her former colleague on the Third Circuit, Justice Alito. The New Jersey U.S. Attorney’s Office holds a special place in his heart not just because he started his legal career there, but because it’s where he met his wife. Martha-Ann Bomgardner, now Martha-Ann Alito, was a librarian in the office when Sam Alito was an AUSA — and Alito, an appellate lawyer, spent a lot of time in the library.

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“When I was an assistant U.S. attorney, legal research required the use of books,” he said. “But there were some AUSAs who were ahead of their time and never used books.”

And this, in a nutshell, is why God invented appellate lawyers. It was Alito’s job, as an appellate AUSA, to try and preserve the convictions won by trial AUSAs who might not have done all their homework when handling cases in district court.

Justice Alito also shared some anecdotes about his family dog, Zeus. After the Alitos moved to D.C., Zeus developed behavioral issues, including separation anxiety (which Alito blames on D.C.; he doesn’t seem to be a fan of life inside the Beltway). So His Honor took Zeus to the “doggie shrink,” who at first prescribed “relaxation exercises.” This required Justice Alito to put Zeus into the downward-facing dog pose — no easy feat when dealing with a fifty-pound dog.

After the relaxation exercises failed, the vet prescribed medications for Zeus — specifically, Valium and Prozac. So Justice Alito went to CVS — Supreme Court justices, they’re just like us! — to get the prescriptions filled. The pharmacist, not noticing that the prescriptions came from a veterinarian, started quizzing the justice to make sure he knew how to take the medicine properly. (A heavily medicated justice, perhaps experiencing a midlife crisis? This sounds like something out of Professor Jay Wexler’s forthcoming SCOTUS novel, Tuttle in the Balance (affiliate link).)

Along with reflections on the history of the U.S. Attorney’s Office, Justice Alito offered praise and thanks to the current and former federal prosecutors — many of them now defense lawyers — in attendance. Even though prosecutors and defense lawyers might seem to be working at cross purposes, he said, our system of justice depends upon both sides representing their clients zealously and to the best of their ability.

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(Flip to the next page for photos of Judge Barry and Justice Alito, plus the video documentary about the office’s history.)

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