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Friday, September 16, 2005

Judge Roberts as Atticus Finch, and the Killer Question that was never pressed: "Would you have taken the Topeka Board of Education as your client?"

During the very last bit of questioning of Chief Justice-nominee John G. Roberts, Jr. on Thursday, it appeared to me that Sen. Richard Durbin (D-IL) had been fed by his staff what was intended to be a "killer question" that would finally trip Judge Roberts up — that would produce a sound bite and a headline under the cover of which Democratic senators could rally to purportedly justify votes against Judge Roberts' confirmation. I tend to think that what he did with that killer question was due to ineptitude — after all, this immediately followed Sen. Durbin's plea that the special counsel looking into prosecution of the purported theft of Senate Dems' computer files last year take a close "look at the precedent of the Paris Hilton case and see if he can perhaps protect our records as much as we want to protect that poor young lady's telephone records." But I can't rule out entirely an attack of at least subconscious conscience and ethics on Sen. Durbin's part. Anyway, for whatever reason, he muffed and muddied the delivery of the would-be killer question, and thereby missed a chance for effective demagoguery. From the transcript, here's how he started, promisingly enough:

DURBIN: If I could, I'd like to return to a discussion that we had yesterday about a very fundamental question. I asked you yesterday about a case that you handled as an attorney involving a large HMO, in which you advanced a very narrow reading of an Illinois state law.

Had your position prevailed, millions of American families stood the risk of losing coverage for their health insurance. You did not prevail, and as you mentioned, a closely divided court — which again underlines the importance of each new justice as we consider them — but your position did not prevail.

Let me read what you said to me in response. You said you'd told me you had no reservations about taking the case. And here's what you said, quote, My practice has been to take the cases that come to me and if the other side in that case had come to me first, I would have taken their side, end of quote.

I want to follow up on this.

Whether he himself or some clever aide had written it, up until at least this point, Sen. Durbin was sticking closely to his prepared script. And this was indeed an effective set-up, because it established nicely that at least in some circumstances, Judge Roberts had already acknowledged that he could and should answer hypothetical questions about what clients and cases he'd have taken as a practicing lawyer.

It may be that what Sen. Durbin actually said next was still in the script, but just less cleverly planned — and I'll get to what he actually did say in a moment. But first I'll tell you word for word, friends and neighbors, exactly the killer question that Sen. Durbin should have asked immediately after laying that predicate:

DURBIN: If the members of the Topeka Board of Education had come to you in the early 1950s and asked you to represent them in the Supreme Court against young Linda Brown and her family, would you have taken or refused that case?

The politically correct answer, of course, would be a simple "I would have refused it." But as I'll explain in a moment, I'm almost certain that's not the answer that Judge Roberts would have given. Instead, he would have told the truth. And that's why this might have become the "killer question" that none of the Democratic senators ever found.

If the question had been asked exactly this bluntly, after exactly the same set-up that Sen. Durbin had in fact already made, and if Judge Roberts had given any answer other than an unequivocal "I would have refused it," then the Dems would have either had a far, far better example of him being noncooperative and evasive than anything they actually got all week long, or else something better.

And indeed if Judge Roberts had answered (as I believe he would have) with something like "Yes, I would have taken the Board of Education's case, and let me tell you why ..." — well, then, there's your sound bite and your headline. And some very substantial part of the population of the United States — maybe not a majority, but numbering in the tens of millions — would have tuned out any follow-up explanation he might have tried to give. "He admitted he would have gladly fought for racial segregation," the Dems could have said — "Roll that clip again!" That wouldn't have prevented Judge Roberts from being confirmed, but it would have given the Dems cover for most of them to vote against him.


This illustrates something good trial lawyers understand, but that apparently none of the Democratic senators do: The cross-examining questioner has an inherent advantage simply by virtue of always being able to frame the question (and the next question after that). The essence of brilliant cross-examination is using that advantage to maximize the probability of extracting from the witness' own mouth the specific statements you want — organized, sequenced, and phrased in just the way you carefully choose to present those statements, and without any context or adornment or distractions that you don't want emphasized.

When you are dealing with an honest adverse witness, even a very articulate and intelligent one, this advantage actually becomes all the more powerful. If you know the witness is honest, then you can predict with a high degree of certainty what he'll say. If you're confident that he will tell the truth, then you can afford to ask him very specific but non-leading questions that don't appear to suggest their own answers. You don't have to put words into the witness' mouth, and if you don't have to, you don't want to: When the devastating words come out of the witness' own mouth for the first time — as opposed to being something obtained by extracting the witness' grudging acknowledgment with something the cross-examiner has said — those words are at least twice as powerful and memorable. The best "Perry Mason moments" weren't when Perry just got the witness to answer "Yes, I did it!" to the question "You killed Col. Plum in the library with the candlestick, didn't you?!?" Rather, the best "Perry Mason moments" were when Perry had first done a careful set-up: "So the library lights went out? The dog was outside? The candlestick was in your hand? And Col. Plum, who'd stolen your dowery, had turned his back to you?" And then Perry asked the ultimate killer question: "And what if anything did you then do with that candlestick?" The witness always blurted out: "I can't take it anymore, I admit it, I killed Col. Plum in the library with the candlestick!" The difference is between your audience merely nodding at the former, and gasping at the latter. And once words which originated in the witness' own mouth have escaped into the open, they're impossible to put back, and almost impossible to avoid.

If your would-be killer question is long, or muddy, or has multiple parts, or has undefined, fuzzy terms — then you squander all of that natural advantage, and instead you give the witness the very tools he needs to survive your question. It's hard to push and hold the witness under the surface of the water with one hand when you're handing him a life preserver with the other.

Recall, for example, Sen. Schumer's futile attempt to grill Judge Roberts on whether he disagreed with Justice Thomas' statement in Lawrence v. Texas to the effect that "there is no general right to privacy." This was one of the relatively more artful attempts at cross-examination during the hearing; Sen. Schumer had set it up by first extracting and then reemphasizing Judge Roberts' testimony that he believes there is indeed a substantive "right to privacy" (of some sort) as a component to the "liberty interest" protected by the due process clause of the Fourteenth Amendment. And he would have been equally happy to get Judge Roberts either to say he agreed with Justice Thomas, or that he disagreed and that Justice Thomas was wrong. But when Sen. Schumer tried to bait the hook on his next question with a phrase that included an additional qualifier, Judge Roberts promptly spat out that hook; he objected and quibbled, entirely appropriately, over the qualifier "general." They then argued for four or five minutes about whether there's a distinction between a "right to privacy" and a "general right to privacy," with Judge Roberts insisting, perhaps plausibly, that even Justice Thomas would agree with the former but not the latter. Sen. Schumer lost all his momentum; nothing transpired that could make it into a sound bite or a headline; nothing made the audience gasp and sit up suddenly. He thought he'd found a "no-lose" question, but he couldn't quite pull it off. And the reason for that, at bottom, is because it wasn't a fair, straightforward question; that modifier, "general," was indeed important.

Thus, the killer question can't be an obvious rhetorical trick, a "when did you stop beating your wife?"-type question. Those insult your audience's intelligence. "Aha, then you admit that God could make a rock too heavy for even him to lift!" may be the sort of thing philosophers can argue about for centuries, but that kind of rhetorical trick makes little impact on the average observer. Worse, a good witness can often use those tricks to ju-jitsu you onto your back.

But when you've laid your proper predicate, and when your killer question is transcendentally, self-evidently, righteously clear, clean, and fair, then you'll either get the straightforward killer answer that you seek and expect, or else the witness will obviously look like a quibbler and a prevaricator. Sometimes you're just as happy with the latter, especially when you can highlight it. And quite often you can even get both, which is the best of all worlds! Provided that you have already built up some credibility with your audience as being a polite and fair questioner, then when the witness begins to quibble with your killer question, you can take the extraordinary step of interrupting — very politely but forcefully: "No, sir! Would you have taken the Board as your client or not? Yes or no?" Depending on how sympathetic and credible the witness is, you might even get away with one additional interruption: "— Excuse me, Judge Roberts, but my question calls for a 'yes' or 'no' answer. Please answer 'yes or 'no,' and then I'll give you all the time you want to try to explain that answer: Would you have taken the Topeka Board of Education as your client?"

Not to take anything away from Judge Roberts' brilliance as a judge, lawyer, and witness — fighting this guy even to a draw would have been a huge and improbable victory for the Democratic members of the Senate Judiciary Committee — but the Dems have this week proven themselves the Opportunity-Squandering Masters of the Universe. I don't believe a single one of them could make a decent living in a courtroom, unless it were as a janitor.


I am almost 100 percent certain that Judge Roberts' truthful answer to that question, if it had been cleanly asked, in fact would have been, "Yes, I'd have taken the Topeka Board of Education as my client." That's based on what was actually said. But as you read the transcript, note how Sen. Durbin blows all of his natural advantages. He's long. He's fuzzy. He uses lots of qualifiers, and becomes progressively less, instead of more, specific. And worst of all, he starts with something substantially weaker than his killer question, which was indeed Brown v. Board of Education. Instead, he picked Romer v. Evans, a gay-rights case from Colorado on which roughly half the country disagrees with the Democratic Party line. Rather than alarming his own base, and perhaps alarming others outside it, by going straight to Brown, Sen. Durbin instead comforted Dubya's base by asking about whether Judge Roberts would just as gladly have helped out the anti-gay-rights forces in Romer! And thus, not only did Judge Roberts have no trouble deflecting Sen. Durbin's fumbling efforts with Romer, but he had a good head of steam to continue bulldozing Sen. Durbin when he finally, weakly and confusedly, sorta kinda got to Brown v. Board of Education:

You have taken some pride in the pro bono cases that you have taken, and I'm glad you have. I think that is part of being a professional, accepting pro bono cases.

You were asked the other day about your participation in the 1996 case of Romer v. Evans, a landmark case that struck down a Colorado law that would have taken away the rights of gay and lesbian Americans. You gave some legal advice to the lawyer in this case who was trying to uphold the rights of those with different sexual orientation.

So I'll ask you, if the other side had come to you first and said, Mr. Roberts, we would like you to defend this state amendment that took away the rights of gays and lesbians, would you have taken the case?

ROBERTS: It's a hypothetical question.

Of course, I think I probably would have, Senator. I actually have done pro bono assistance for states on a regular basis through the National Association of Attorneys General. And, if I'm remembering right, the state would have been the other party in that case — I think that's right.

And, through the state and local legal center, I've participated in moot courts with the states on a regular basis.

And a big part of my practice was representing states. So, if a state — in that case, Colorado — had come to me and said, We have a case in the Supreme Court; would you defend it? I might — again, I can't answer without knowing the full details and all that, and I'd have to look at the legal issues. And I would not, and never have, presented legal arguments that I thought were not reasonable arguments. It doesn't necessarily mean they're going to prevail, and I've certainly lost my share of cases.

But it is not been my general view that I sit in judgment on clients when they come to me. I viewed that as the job of the court when I was a lawyer. And just as someone once said, you know, it's the guilty people who really need a good lawyer.

I also view that I don't evaluate whether I as a judge would agree with the particular position when somebody comes to me for what I did, which was provide legal advice and assistance, particularly before the Supreme Court.

DURBIN: I have a long series of hypotheticals I won't get into, such as, all right: Would you have represented the D.C. government against the welfare families? You took pride -- you spoke to me of your pride in representing the poor people in the District of Columbia on their welfare rights.

I could ask you whether you would have taken the side of the board of education in the Brown case. Would you have taken the side of the state of Virginia in Loving? I could have gone through all those hypotheticals.

The reference to the "long series of hypotheticals" is what makes me think that someone else wrote this for Durbin, and he muffed it. He came to the on-the-spot conclusion that this wasn't working. So what's he do? He stumbles around some more, and ultimately asks an off-the-cuff touchy-feely question — that is, he abandons his fastball and instead throws a floater belt-buckle high right down the center of the plate, which of course Judge Roberts crushes out of the ballpark:

And the purpose of my original question was this: All of us are trying to get down to, what are your core values. Where would you draw a line, saying, I do have principles and values. There are certain things I would not use my legal skills to do because they conflict with those values?

If this is just a process, a legal contest and you'll play for any team that asks you to play, it raises a question about where would you draw the line, if you would ever draw the line.

And I think that is why I've asked this question and I want to give you an opportunity now to tell us....

... As a lawyer, do you have standards and values as to the causes and beliefs that are so important to you where you would draw a line?

ROBERTS: Well, let me try to answer it this way, Senator.

People become lawyers for different reasons, all perfectly good and noble and legitimate.

People who are interested, for example, in protecting the environment often will go into the law and practice environmental law because they think that's an effective way to advance a cause in which they passionately believe.

People who are committed to the cause of civil rights may become lawyers and become civil rights lawyers and present and press those causes because they're causes in which they passionately believe.

I became a lawyer — or at least developed as a lawyer — because I believe in the rule of law.

The point I was trying to emphasize in my opening statement that all of these other areas —  you believe in civil rights, you believe in environmental protection — whatever the area might be — believe in rights for the disabled — you're not going to be able or effectively to vindicate those rights if you don't have a place that you can go where you know you're going to get a decision based on the rule of law. It was the point I was making with respect to the Soviet constitution: filled with wonderful sounding rights; absolutely meaningless because people who suffered under that system had no place they could go in court and say, My rights have been violated.

So that's why I became a lawyer, to promote and vindicate the rule of law.

Now, that means that that's at issue and play regardless of what the cause is. And that's why, as we were talking yesterday, you can go in my record and you will see, yes, I've advanced cases promoting the cause of the environment. As I was discussing earlier, I've been on both sides of this affirmative action issue. Take even technical areas like antitrust: I've defended corporations; I've sued corporations.

In each case I appreciated that what I was doing as a lawyer, particularly as a lawyer before the Supreme Court, was promoting the rule of law in our adversary system.

I viewed that as — I appreciate that the some may say, Well, that sounds like you're a hired gun, to be disparaging. You're going to take the side of whomever comes in the door first.

I think that's a disparaging way to capture what is, in fact, an ennobling truth about the legal system: that lawyers serve the rule of law, above and beyond representing particular clients.

That's why when the chief justice welcomes new members to the Supreme Court bar, he welcome welcomes them as members of the bar and officers of the court, because that is the important role that they play.

That has significance for what types of arguments they can present and how they can present them.

By the time they were done, Judge Roberts basically was Atticus Finch, and Sen. Durbin was just another doofus — someone more likely to be part of a lynch mob of one sort or another than a meaningful contributor to the justice system.

Of course, I happen to think Judge Roberts is a lot like Atticus Finch, and that Sen. Durbin is a doofus. My initial, cynical point in this post was to show how the Dems could have been more effective — not right, and in fact, I mean "effective" at demagoguery.

In fact, if I were asked, "Would you have undertaken the representation of the Topeka Board of Education, my answer — gasp! — would be "Yes, I would have, but let me tell you why." Yes, the Dems would definitely have gotten their headlines and sound-bite out of me if I'd been the nominee and they'd been clever with their questioning. Here's what I would have said after the "Yes, but" — in other words, what would have been relegated to 3:00 a.m. on C-SPAN2, and ultimately a trivia answer to the question "What ever became of that disastrous Beldar nomination to the Supreme Court?"


I have to qualify my entire explanation by noting that there aren't many clients whose positions are so thoroughly repugnant and, yes, evil as were the segregationists. And even most of them were victims of thorough self-delusion; some of them were wrongly but sincerely convinced that their position was for the "good" of both races. I'm not trying to justify their position in the slightest, but rather to point out that in the real world, absolutely pure- and black-hearted clients aren't all that common. But let's stipulate, for purposes of this discussion and without any further back-and-forth, not only that the Board's position was wrong in hindsight, but that they should have known it was wrong then. And I also should note that some types of culpability spark such intense negative passion in some lawyers that regardless of their belief in "the system," they just can't bring themselves to undertake a particular representation. Somewhere, for example, there is a lawyer idealistic enough that he could undertake the representation of Osama bin Laden, but I'm not that guy. And there may be people who genuinely feel there's no meaningful distinction between Osama or Hitler on the one hand, and the Topeka Board of Education or George W. Bush on the other. Let's likewise stipulate that they're entitled to that viewpoint as well, and to self-select themselves out of the system. So we're talking now about the category of potential clients whom, roughly, one thoroughly disapproves of, condemns, and deplores on moral grounds, but with whom one can bring himself to converse and sit in the same room without an overwhelming and irresistible compulsion to initiate physical violence. Where those lines get drawn is very subjective and varies according to the individual lawyer, client, and issue.

Those qualifications made, I'd start my explanation proper by saying that in 1954, things were very different indeed. Society was different and the existing law was different. If someone asked me to take a case trying to justify racial segregation today, I'd absolutely refuse to do so, and indeed I'd kick them the hell out of my office. That's because under today's law, that would be a frivolous, even sanctionable position to take — entirely apart from it being morally repugnant.

But it was a morally repugnant position even while Plessy was still the law of the land. So why would I ever take a case defending a client whose position I found morally repugnant?

To begin answering that, I'd launch into my standard spiel about the huge and essential difference between the two crucial functions of a trial or appellate lawyer — first as a counselor, and only second as an advocate. I'd explain that if the Topeka Board of Education had hired me in 1954, I'd have taken the case in part so that I could do my very best — as a counselor behind closed doors and in the sanctity of attorney-client communications — to persuade them that they were wrong, badly wrong and ultimately shortsighted, regardless of the law, and that they ought to voluntarily desegregate.

Indeed, before accepting the engagement at all as either a counselor or an advocate, I'd have considered myself ethically bound to disclose to the Board that I found their position absolutely morally repugnant. I'd have pointed out to them the very significant likelihood that because of my strong personal convictions and emotions, my objectivity and judgment, and very likely my effectiveness, might be compromised in ways invisible to me and perhaps to them. I'd insist on a written waiver confirming that they'd received and understood that disclosure, and that they'd agreed to hire me anyway (in lieu, presumably, of a bigoted and therefore unconflicted but perhaps less effective lawyer).

But what if I'd gotten that waiver and then I'd nonetheless failed in my effort as a counselor to persuade the Board to give up the fight? Then yes: I'd have done my best — as that famous (among history-minded lawyers anyway) "Lawyer's Lawyer" and 1924 Democratic Party Presidential candidate John W. Davis in fact did — to justify the Board's position in court as an advocate. I'd have done my best for exactly the same reasons that Judge Roberts explained. I believe that public confidence is justifiably highest in the legal system, and that the system is most likely to most consistently produce actual justice, when the adversary process has been fully engaged in and the courts have been presented with the strongest possible arguments to be mustered for each side. I would have expected, and privately hoped, to lose, and I would have been unsurprised, and privately relieved, when that in fact happened. And by 1954, I would indeed have lost, and so would John Roberts, if either of us had been representing the Board. The Board deserved to lose, and by then that was going to happen regardless of how good the Board's lawyer was. I suspect, in fact, that John W. Davis — the ultra-"John Roberts" of his day in terms of being a frequent and successful Supreme Court appellate advocate — privately felt that way too.


This notion of a moral, ethical lawyer willingly representing a repugnant, evil position is very difficult for many people to accept — including some very bright people who fully understand the arguments that such representation is necessary in the overall interests of justice. Perhaps the best way I've found to get the doubters to take a fresh look, though, is to slightly change the focus — and to do so in a way that might have also been illustrated by questioning of Chief Justice-nominee Roberts. What if the question had instead been this one:

DURBIN: Judge Roberts, if you had been the Chief Justice of the United States in 1954 instead of Earl Warren, would you have barred the Topeka Board of Education from participating in the proceedings in the Supreme Court, refused to read the briefs filed by its lawyers, and summarily ruled against the Board without ever giving its lawyers any opportunity to be heard?

When posed that way, I think the instinctive, intuitive answer of almost anyone who understands and respects the concepts of justice and the rule of law is to say: "Well, they deserved to lose alright, and maybe also to eventually rot in hell for at least a few centuries; but they also deserved to at least get to be heard by the Supreme Court before it fixed the law by overruling Plessy." And they're right — without guarantees of that access, that procedural fairness, there can be no substantive justice for anyone.

It's just, perhaps, that lawyers — jaded and cynical as we often are — understand from working inside the system that both in theory and in practice, having dedicated advocates representing both sides is just as essential as the judge letting both sides through the courthouse door in the first place. We understand that Thurgood Marshall's magnificent victory in Brown would have lacked much of its glory and legitimacy had it been over an adversary less skilled than John W. Davis; both men played an essential part, as, of course, did the Court. And sometimes — when, as counselors, we can't achieve a settlement or a plea bargain or some other non-adversarial resolution — then as advocates, we've just gotta "take one for the team" ("the team" meaning "the whole justice system") and do our best in what nevertheless turns out to be, and in the interests of justice should turn out to be, a losing effort.

Sometimes a lawyer genuinely does his best, but loses —  and doesn't, and shouldn't, lose any sleep over it.

Posted by Beldar at 10:06 PM in Law (2006 & earlier), Trial Lawyer War Stories | Permalink


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Tracked on Sep 17, 2005 8:18:53 PM


(1) Jane made the following comment | Sep 17, 2005 6:13:08 PM | Permalink

Thanks for the great post. The cross exam they missed was wonderful and the Robert's quote about why he became a lawyer simply made my whole day.

(2) Charlie Quidnunc made the following comment | Sep 17, 2005 8:21:23 PM | Permalink

Great post today. I used your fine words as the basis for my podcast today, with the actual audio from C-SPAN in place of the transcript. I find your approach a terrific way to look at the politics and the law in a great combination. It makes for a very entertaining piece. Give my podcast a listen if you get a chance. I'd prefer to have you reading. If you are interested, send a note.

(3) Milhouse made the following comment | Sep 18, 2005 8:46:10 AM | Permalink

The court, if it hears a case at all, has to hear both sides, with as much impartiality as it can possibly muster. If it can't do that, then it can't accept the case at all. No lawyer has to represent a client he thinks is wrong.

(4) Carol Herman made the following comment | Sep 18, 2005 11:02:07 AM | Permalink

The best surgeon can take your case. His levels of skills run highest. And, still you die. That's the "art" behind the science. You can give good arguments; and still lose your case.

And, Babe Ruth didn't hit every ball out of the ballpark.

Why do clients think they automatically win if they hire the "best lawyer?" It's not the same as "buying the judge, ya know? The RULE OF LAW, in fact, prevails.

(5) Milhouse made the following comment | Sep 18, 2005 2:59:43 PM | Permalink

If the skill of your lawyer didn't increase your odds of winning regardless of the merit of your case, then why would anyone spend the money on a good one, when there are plenty who will handle it for less?

(6) Beldar made the following comment | Sep 18, 2005 3:07:56 PM | Permalink

On the margins, the quality of the advocates matters a lot to the outcome. The question is, how wide are those margins, in general and in specific cases?

My opinion is that by 1954, given the evolution of the prior cases (most recently and importantly Sweatt v. Painter involving my own alma mater, Texas Law School), even a pro se plaintiff might well have won Brown. That's not to belittle Thurgood Marshall's performance at all. He'd been involved in many of those prior cases as well. But there are some ideas, and legal precedents, that emerge when their time has come — as did, for example, Gideon v. Wainwright on the right to counsel, initially filed pro se (although eventually argued by Abe Fortas).

(7) Kent made the following comment | Sep 19, 2005 10:12:56 AM | Permalink

If someone asked me to take a case trying to justify racial segregation today, I'd absolutely refuse to do so, and indeed I'd kick them the hell out of my office. That's because under today's law, that would be a frivolous, even sanctionable position to take — entirely apart from it being morally repugnant.

Morally repugnant, yes. Frivolous and sanctionable? What if a university came to you to defend their decision to allow blacks to organize an all-black dormitory or fraternity?

(8) Sam made the following comment | Sep 23, 2005 1:30:54 PM | Permalink

The answer that crossed my mind on reading the question was, "I would have taken and lost it. Their position was wrong but they deserved to have it represented." And as a postthought: "They deserved to have it represented and defeated, and the country is better because it was put forward as well as possible, so there is no question but that it was defeated on the merits."

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