Minnesota Lawyer Blog

Speaking of the U.S. Supreme Court, I happened to catch a repeat of an interview with Justice Antonin Scalia discussing some of his thoughts while plugging his new book. At one point he was talking about the quality of the lawyers who come before the high court. He said there was generally a higher quality to the bar of the D.C. U.S. Circuit Court of Appeals (where he sat before joining the high court) because of the specialized nature of that bar. At the U.S. Supreme Court, on the other hand, you get trial lawyers and others not used to arguing appeals, many making their first (and most likley only) Supreme Court appearance.

While some are just awful, others are surprisingly good, Scalia said. As an example of the former, the justice cited a lawyer from a big, white-shoe Wall Street firm who spends his time bumbling through his notes. As an example of the latter, he said that a young public defender "from Podunk" will occasionally come before the court and make a brilliant and flawless argument. Scalia says what goes through his mind in the second instance is that her talents could be better utilized. (I am not so sure the Podunk poor would agree. ...). Explaining further, he expressed a belief that the legal system siphons off too much of the talent, and that their skills could be better utilized doing things like inventing things and building companies. A fascinating comment, particularly since he answered that he could not have envisioned using his own talents in any other way than as a lawyer or judge.

A noteworthy aside: Scalia strongly emphasized that lawyers appearing before the U.S. Supreme Court should wear a conservative dark suit -- dark blue, gray or black. "Not brown," not even "dark brown," he said with finality. I couldn't help getting a chuckle out of this knowing that Scalia owes his place on the high court to President Ronald Reagan, a man whose personal style statement was the reintroduction of the brown suit to the White House.

The "6o Minutes" interview with Antonin Scalia last night was worth watching. Scalia lived up to his reputation as being intelligent, stubborn and charming. Anyone who follows the U.S. Supreme Court knows that he is the justice who garners the most laughs from the people in the high court's gallery with his witty, though sometimes biting, observations. He is definitely not someone you would want to appear in front of unprepared (although, admittedly, the chances any lawyer would go before a U.S. Supreme Court justice unprepared are fairly minuscule).

Yet, Leslie Stahl's researchers seem to have made a pretty big gaffe on the topic of torture. Stahl asked Scalia how he could believe that torture did not constitute "cruel and unusual punishment" under the U.S. Constitution. Scalia tried to explain that torture is not used for punishment, but to extract information, and, because it is not "punishment," that particular provision does not apply. (The debate on torture centers on human rights treaties, not the 8th Amendment.) However, Stahl kept pressing Scalia on this one point, as if it was the justice who didn't get it. After Scalia made several stabs at clarifying the constitutional point, it became obvious Stahl wasn't hearing him. He promptly ended the discussion and moved on.

That one part aside, I thought it was a decent interview. I don't know if I liked it enough to go buy the recently released book Scalia co-authored with legal writing guru Bryan A. Garner, "Making Your Case: The Art of Persuading Judges." It would certainly be worth picking up if you are going to argue before the U.S. Supreme Court. Personally, I would have been more interested in reading Scalia's autobiography. I mean if Clarence Thomas, who never says a word on the bench, can write one, why can't Scalia?

The U. S. Supreme Court yesterday heard oral arguments in a closely watched employment law case. The high court has been asked to decide whether a plaintiff suing for employment discrimination can introduce so called "me too" evidence. (Click here for more.) DC Dicta -- a blog run by our national sister publication, Lawyers USA -- actually found something funny to report on in a pretty serious case.

With the new attorney general and the solicitor general looking on, Deputy Solicitor General Gregory Garre argued the government's amicus position. Garre is a seasoned attorney who once clerked for Chief Justice William Rehnquist, but that did not stop him from inadvertently misstating the name of one of the justices.

In another otherwise articulate response to question from Justice Samuel Alito, Garre mistakenly referred to Alito as "Justice Scalia." (Alito and Scalia sit three seats apart.) There are, of course, liberal blogs that might say we are splitting hairs differentiating between the two conservative justices. Nonetheless, the slip up -- which went otherwise uncommented on --reportedly drew chuckles from the press gallery.

I am just glad to know that even the most seasoned lawyers get nervous when they argue a case in front of the U.S. Supreme Court.