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Sunday, September 11, 2005

John Roberts as counselor

In today's edition, WaPo staff writer Michael Grunwald has a well-written and extremely interesting front-page article about Chief Justice nominee John G. Roberts, Jr.'s unusual law practice. I was particularly struck by the first two and a half paragraphs, which express thoughts I've also had (but not yet blogged about at any length):

John G. Roberts Jr. built a golden reputation as a "lawyer's lawyer" without doing most of the things that lawyers do. He never filed a lawsuit, addressed a jury, cross-examined a witness, took a deposition or negotiated a deal. He never advised a client on a tax return, a plea bargain, a restraining order, a will or a divorce. If he ever got into a confrontation with opposing counsel, no one seems to remember it.

That is because Roberts has spent most of his career as a star — by all accounts, a superstar — in the most rarified constellation of the legal galaxy, the exclusive club of Supreme Court appellate specialists. Now that Roberts has been nominated to sit on the court as its leader instead of standing before it as an advocate, his 17-year membership in that genteel, apolitical, almost academic club of overachievers may reveal more about his legal mind than his six-year stint as a brash, young Reagan administration aide or his two-year tenure as a federal judge.

There are 1 million lawyers in America, but only about two dozen Supreme Court specialists, nearly all white, nearly all male, nearly all based in Washington. They include staunch Republicans such as former solicitor general Theodore B. Olson and staunch Democrats such as former solicitor general Seth P. Waxman, but most of them will represent almost anyone with a case before the court ....

I absolutely, positively agree that Judge Roberts' practice as a high-level appellate advocate, both with the Solicitor General's office and in private practice, was indeed an extremely unusual one. The numbers go substantially above "two dozen" when one expands the focus to "appellate specialists" more generally — it's quite typical for middle- and large-sized law firms to have a few such lawyers, and some of them have distinct appellate advocacy departments. The difference between what they do and what the Supreme Court specialists like John Roberts do is one of degree, not of kind. Yet even their practices are fairly obscure to the general public. And if your ideas of what lawyers do on a day-to-day basis come from watching L.A. Law or The Practice or Perry Mason, or if your personal acquaintances and experiences with lawyers have been with generalists, or deal lawyers, or litigators (or the more rare category, genuine trial lawyers), then you probably don't have a very clear idea of what Judge Roberts' career has been like. Mr. Grunwald's article is a fine primer in that regard.

And indeed, if John G. Roberts, Jr.'s career had been entirely limited to being an private-practice appellate advocate, I'd be considerably less enthusiastic about him as a Chief Justice nominee. Law students often participate in "moot court" competitions, which are pretend oral appellate arguments; they're fun and useful, but even most law students quickly realize that they're pretty severely filtered from what most people, and even most lawyers, experience as the "real world."

But I think there's an important point that Mr. Grunwald's article fails to make, and at the end of this passage actually gets sort of wrong (boldface mine):

In 1989, Roberts joined the solicitor general's office, a way station for almost every prominent Supreme Court specialist, offering unparalleled opportunities for bright, young lawyers to gain court experience. It is a hardworking office with an old-fashioned culture of professionalism, where lawyers tend to believe there is a right answer to legal questions based on statutory interpretation, and still wear morning coats and ascots when appearing before the court. "Politics" is a dirty word on the Justice Department's fifth floor, and while Roberts served as Solicitor General Kenneth W. Starr's "political deputy," and once signed a department brief that described Roe v. Wade as "wrongly decided," his colleagues do not recall a politically charged atmosphere in the office.

"It was more of a scholastic atmosphere," recalls Maureen Mahoney, now a Supreme Court specialist at Latham & Watkins. "We had lawyers all across the political spectrum, and I don't think anyone would say John had an ideological agenda."

President George H.W. Bush tried to put Roberts on the bench in 1992, but his nomination languished in the Democratic-controlled Senate, then stalled after President Bill Clinton's election. So Roberts returned to Hogan & Hartson. Its Supreme Court practice — like most Supreme Court practices — was essentially a for-profit version of the solicitor general's office, without the costumes.

Now, I haven't worked in the Solicitor General's office, nor practiced at Hogan & Hartson. So I'm not speaking at all from first-hand experience. But I am quite certain that the last sentence of this passage is pretty badly wrong, or at least misleading, in a way that somewhat (and probably unintentionally) slights Judge Roberts' qualifications to become Chief Justice.

Mr. Grunwald's article focuses almost solely on the role such lawyers play in public — in what they write in briefs, in what they say during oral arguments — as advocates. And that's only part of the job. The rest of the job is to be a counselor. And that's true whether one's client is Toyota or the Sierra Club or the United States of America: They all need counseling as well as advocacy.

An advocate's job is to pummel the other side, to advance his clients' positions, to zealously represent them (within the bounds of the law) against all of their adversaries. And the "hired gun" metaphor, which Mr. Grunwald's article aptly employs, fits that part of the practice.

But what if the client wants to know, "Is it worth spending $80,000 on this appeal because of its potential precedential effects on my industry, or should I settle the case now while I can do so for $20,000?" What if the client wants to know, "What are the upsides in trying to get other members of my industry to get interested in this appeal, perhaps interested enough to file an amicus brief? And what are the downsides of that?" What if the client wants to know, "Say we make this argument on appeal, win with it, and we get the new trial we've asked for; how's our position that we've taken in the appellate court going to constrain us when we're back at the trial court level?" What if the choice is between filling the appellate court's page limitation with eight additional but weaker arguments, versus spending the last twelve pages going into more depth on your main argument?

These are all questions that require the appellate lawyer to function as a private, confidential counselor. They involve decisions that clients ought to understand and have input into. They're questions that require not the advocate's combativeness, single-mindedness, and glibness, but the counselor's reflection, wisdom, and judgment.

Indeed, one of the reservations I have about appellate specialty boutiques — not just individual lawyers, but entire small law firms who do nothing but appellate work — is that they may lose perspectives from outside the appellate court experience that may nonetheless be important in representing clients within it. Just as I'm a better trial lawyer because I've got some experience (from my clerkship and from handling a couple dozen appeals) in how important it is to create a proper appellate record, for example, I'm also a better appellate lawyer because I've tried a bunch of cases to a jury verdict or a bench decision, and hence, for example, can more clearly envision and construct a comprehensive strategy that includes pretrial discovery, trial, appeals, and even retrials. Reflection, wisdom, and judgment, in other words, are a function not just of the depth of one's experience, but its breadth. And someone who never does anyhing other than file briefs and argue before the Supreme Court is engaged in a very narrow practice indeed — which may sharpen advocacy skills at the expense of some counseling skills.

John Roberts may not have ever tried a first-chair jury case, nor even been among counsel of record in any kind of case that's gone through to a trial court decision on the merits. But I noted somewhere, as I was reading about his private practice, that he'd made a point to work on at least a few trial court matters; and Mr. Grunwald repeats what I'd read elsewhere about his insistence on personally reviewing trial court records and his inclination to visit in person some of the locations that were involved in the appeals he's handled. Well, that's very good for him, I thought, and good for the Nation! What I infer from that, with considerable confidence, is that John Roberts was aware of, and consciously trying to combat, the tendencies to become isolated, overspecialized, and, well, other-worldly if all a lawyer ever deals with is appeals.

And indeed, I strongly suspect that the biggest single difference between John Roberts' private practice as an appellate advocate and his time in the SG's office was that the counselor role was far more important while he was at the Solicitor General's office, as compared to his private appellate advocacy practice. This is the most important thing that Mr. Grunwald's article mostly misses. Besides writing (or editing and revising) briefs and arguing cases, the SG's office gives crucial, confidential advice on all sorts of incredibly important litigation involving every branch of the federal government. Yes, advising Toyota about potential industry-wide ramifications from a case involving one manufacturing plant's compliance with the Americans With Disabilities Act requires reflection, wisdom, and judgment. But those qualities are even more important when advising, say (hypothetically), the Department of Labor that even though there's currently a split between the Eleventh and Ninth Circuits on the interpretation of a particular statute, it would be in the government's overall long-term interest to not apply for certiorari on cases presently pending in either of those two Circuits, and instead to focus on yet a third case percolating its way up through the federal district court in Colorado through the Tenth Circuit — and that that's the specific case you want to use to bring the issue before the Supreme Court.

Indeed, the SG's specific mandate is to see the big picture — especially in ways that, for example, other government lawyers working directly for specific departments on a day-to-day basis may lack the objectivity to see. And in that counselor's role, the SG and his staff may find themselves mediating, or resolving conflicts among, different departments and interests within the federal government. It may thus be that significant past responsibility in the Solicitor General's office is a particularly important qualification for a Chief Justice nominee, given the special expectations and responsibilities of that job.

Bluntly put, being among the chief counselors on litigation matters for the entire federal government is just a big damn deal, irrespective of the fact that it also gets you lots of Supreme Court oral arguments. What the SG decides not to do is sometimes more important than what any other government lawyer can do or decide to do. And with all due respect to Hogan & Hartson and its clientele, having been Deputy Solicitor General is a considerably better qualification for a seat on the Supreme Court than "just" having been even a very elite private hired gun.

This may sound like quibbling. Probably it is. But the skill-sets one uses, refines, and polishes as a counselor don't entirely overlap with the skill sets of an advocate, or vice versa. And thus, while I think that Mr. Grunwald's article is indeed illuminating, I think it probably gives short shrift to Judge Roberts' overall qualifications because it focuses essentially exclusively on his role as an appellate advocate. A great deal of the wisdom, experience, and judgment that I believe suits Judge Roberts for the Supreme Court comes instead from his experience as a counselor — both while performing that role at the SG's office and then in private practice, and while performing it in the considerably less adversarial (or at least, less rule-bound) environs in the office of counsel for the President. And the combination of experiences — especially when one also factors in a not-insignificant couple of years on the highest-profile federal court of appeals — makes him a far more compelling nominee than even Mr. Grunwald's generally quite accurate and quite flattering article reveals.

Posted by Beldar at 03:55 AM in Law (2006 & earlier) | Permalink

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