Kagan: 'Too Soon' for a Bobblehead

This article first appeared in the February 12, 2014, issue of the National Law Journal’s Supreme Court Brief.

*Photo credits below

Speaking to an audience in Washington, D.C., Justice Elena Kagan recently reflected on her future legacy—and a possible Kagan bobblehead.

The occasion was a February 5 luncheon where Judge Sri Srinivasan of the U.S. Court of Appeals for the D.C. Circuit was honored with the J. Reuben Clark Law Society’s Rex Lee Advocacy Award.

During a question and answer period, I asked Kagan how she would like to be remembered and, on a related, but more whimsical note, what she would like on her future bobblehead. The popular figures of Supreme Court justices, distributed by the Green Bag law journal, feature visual references to justices’ important opinions.

“I don’t have ambitions to lay down some marker in a particular field of law,” Kagan replied. There is no: “I want to be a great First Amendment person,” or “I want to have a legacy in Fourth Amendment” for her. “I am taking the cases one by one” and trying “to decide [them] as well and honestly as I can.”

Kagan wants her opinions to be clear, persuasive, and “not awful to read.”

And about her bobblehead?

“Too soon, too soon, too soon,” the justice indicated. “I hope that none of the things that I have written [so far] will make the cut” because there has not been “anything significant enough.”

Responding to another question, Kagan recalled a conversation with Srinivasan and former Solicitor General Paul Clement about different argument styles. The three were on a plane, traveling back from the Sixth Circuit.

“I forget whether it was Paul or Sri who said some people heat up a room, and some people cool down a room,” Kagan offered, noting that superb advocates fit in both categories.

Srinivasan is on the cool side, Kagan observed, “incredibly forceful and persuasive” in giving justices the unadorned “scoop.” Clement uses his own effective approach, she pointed out, bringing “electricity” to the podium.

It “is really important for young lawyers to remember when they start developing their own advocacy style, that you can be great in a lot of different ways,” Kagan explained.

Accepting the Rex Lee award, Srinivasan joked that he has gone from being “an appellate advocate wanna be” as a new law graduate to “already an appellate has been with my most recent appointment.”

Srinivasan joined the D.C. Circuit in May 2013, after a distinguished career as an appellate advocate. At the time of his confirmation, Srinivasan was the Principal Deputy Solicitor General, the number two position in the office, once held by Chief Justice John Roberts. The Senate confirmed Srinivasan to the D.C. Circuit by a remarkable 97-0 vote, and he is often mentioned as a potential Supreme Court nominee.

Srinivasan praised the thirteen prior Rex Lee award recipients, who include several past solicitors general and other appellate luminaries, as “the best of the best” and expressed gratitude that he had worked with eleven of them.

Judge Thomas Griffith, Srinivasan’s D.C. Circuit colleague, introduced Kagan at the luncheon. Srinivasan thanked Griffith for giving him a warm welcome to the court and for his example as a judge.

The annual Rex Lee award is named for the late solicitor general who served in the Reagan administration. His son, Senator Mike Lee (R-UT), was at the luncheon.

Solicitor General Donald Verrilli, Walter Dellinger, Maureen Mahoney, and other well-known appellate attorneys also attended.

James Rasband, dean of the J. Reuben Clark Law School at Brigham Young University, introduced Srinivasan and presented the award.

The J. Reuben Clark Law Society is associated with BYU’s law school and its sponsor, the Church of Jesus Christ of Latter-day Saints. Rex Lee served as president of BYU and as its founding law school dean.

*Photo credits: Nicholas Jepsen for the J. Reuben Clark Law Society
1-Justice Elena Kagan during Q&A
2-Judge Sri Srinivasan and Dean James Rasband, BYU Law School, with the Rex Lee Advocacy Award
Hyatt Regency Washington on Capitol Hill

Top Appellate Daily Posts of 2013

Laughter beat caskets for the top Appellate Daily post this year.

Below are the most viewed articles of 2013. Four appeared first in the National Law Journal's U.S. Supreme Court section.

Thanks to everyone for reading in 2013 and for all of the follows, links, retweets, and mentions on Twitter. Happy 2014!

1-Laughtergate: The Day the Laughter Died at SCOTUS
          *Something went awry on the First Monday in October.

2-Circuit Split Watch: Will the Court Bury Casket Cases?
          *David-and-Goliath facts with an important legal issue stoked interest.

3-Justice Breyer and Religion
          *An ill-founded assumption prompted this post.

4-Circuit Split Watch: Patricia Millett's Last Supreme Court Case?
          *Prominent counsel and a second trip to the high court made this case one to watch.

5-Justice Souter: Working in Reverse, by Choice
          *Souter retired from the Supreme Court, but not from judging.

6-Breyer Reacts to Affirmative Action Decision: 'Phew'
          *Would have been a Top 5 list, except this piece came in at #6. One of my favorites to write this year. Candid and fascinating insights from Breyer on strategy.

A 2012 post on how Paul Clement prepares for oral argument is still the all-time champ.

Top Five Appellate Daily Posts of 2012

Below are the five most popular Appellate Daily posts of 2012, with a few notes and updates. Thanks to everyone for reading and following the news feed. Hope your 2013 is happy!

1-How Paul Clement Wishes He Could Prepare for Argument

• My interview with the former Solicitor General tops the list this year. It is also the most popular post in the blog's history, by far.

2-Circuit Split Watch: Is Personal Use of a Work Computer a Federal Crime?

• The United States decided not to appeal the Ninth Circuit decision featured in this post, perhaps "scared off by [Chief] Judge Kozinski's opinion" for the en banc majority, according to Professor Orin Kerr quoted in Wired. "It would have been the first document that the [Supreme Court] justices read, and it's a pretty powerful brief against the government's position," said Kerr.
• The computer-use issue is still alive, though. A pending petition for certiorari from the Fourth Circuit on the issue (12-518) gives the Supreme Court the chance to weigh in.

3-Circuit Split Watch: A New Abortion Battleground

• This split is ready and waiting for a vehicle to get it to the Supreme Court. The Oklahoma state court case, mentioned at the end of the post, is the one to watch right now. On December 4, the state supreme court struck down Oklahoma's pre-abortion ultrasound requirement. That day, the state attorney general said in a press release that his office is considering an appeal.
• The Texas federal case is over; it was not appealed to the Supreme Court. The North Carolina federal case is still pending below. See Abortion Ultrasound Cases (Updates and Correction).

4-Judge Wilkinson on Cri de Coeur, Law Clerks, and a Germophobic Third Circuit

• The Green Bag recently recognized Judge Wilkinson's book, discussed in this post, in its 2012 Exemplary Legal Writing honors.

5-Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

• Judge Cassell has asked the Supreme Court (12-651) to review the Ninth Circuit decision highlighted in this post. Other petitions could follow in the coming months.

Response to Slate Article About Paul Clement

I agree with Emily Bazelon about the irony of the results in health care and Arizona immigration, given how things looked after oral argument. (Slate article, linked here, re: Paul Clement and elite Supreme Court advocates.)

Three responses to other points:

1-If we are talking about whether elite Supreme Court advocates are overrated, one of the main points of the Bazelon article, its health care and Arizona immigration references are not good case studies, because both sides in both cases had the elite.

The article compares the pay of Clement and Solicitor General Donald Verrilli, as if to say, “Look, this underpaid government lawyer bested the $1,000-an-hour man. Who needs a superlawyer?” Problem is, Verrilli, a veteran of BigLaw, Jenner & Block, who has handled numerous Supreme Court cases, is a superlawyer himself. Verrilli has taken a pay cut to be in public service—the pay cut Clement took a few years ago, for the same reason. Clement was in the SG's office from 2001-2008, in different roles, including SG.

Verrilli versus Clement in the two big cases was not David versus Goliath. It was Brennan clerk versus Scalia clerk. It was Columbia J.D. versus Harvard J.D. It was Goliath versus Goliath. 

2-It is true, as Bazelon notes, that Clement lost health care and Arizona immigration. Those were the big-ticket items. Absolutely. But, Clement "came out of this last Supreme Court term a big loser"? By my count, his term win-loss record is 4-3. The four wins include Perry v. Perez, an important Voting Rights Act case that was a unanimous victory for Clement. Sign me up for the "big loser" badge, if it means winning four Supreme Court cases in one term (or a lifetime).

3-Bazelon rightly notes that there has been little commentary about Clement after the big decisions came down. Two reasons come right to mind:

One is in the article itself, a Tom Goldstein quote: "[Clement] got the very most that was humanly possible out of these cases....With health care in particular, he took what I always regarded as an impossible case and almost pulled it off. My opinion remains unqualified that he is the best."

Also, there is a little thing called karma. Clement is benefiting from it. Although others, on both sides, took the opportunity to slam or score easy political points based on what they saw as Verrilli's poor performance, Clement did not. I remember watching one of the press conferences during the health care argument week, in which Clement praised Verrilli and said in effect that it had been an honor to share the podium with him. Life lesson alert.

How Paul Clement Wishes He Could Prepare for Argument

If Paul Clement had his druthers, he would book a round trip flight from DC to LA for some uninterrupted prep time before a big argument. Or so he joked when I recently had the chance to speak with the former Solicitor General about time management.

In reality, Clement uses a similar technique on land, setting aside large chunks of time to prepare for cases and guarding that time "jealously," he said. Fifteen minutes here or there will not do it.

Cooperation with colleagues is another key, in terms of dividing work and meetings, as well as responding to inquiries. (For more on this subject, see Tony Mauro's spotlight of Erin Murphy, an associate who works with Clement at Bancroft.)

Clement finds that his experience as Solicitor General transfers to private practice. The SG not only has heavy administrative duties, in deciding which appeals the government will take, but also a "line" function, as Clement called it, arguing cases.

Clement argued nine times during the current Supreme Court term, including in the marquee health care and Arizona immigration cases—three separate appearances on health care alone. Reports described his presentations as "extraordinary," "tremendous," and "superb."

In addition, Clement has cases at the circuit court level, including the First Circuit Defense of Marriage Act case, expected to reach the Supreme Court in the coming months as a petition for certiorari. The day I spoke with him, he was preparing for an argument in the Second Circuit.

Clement also regularly participates in educational and other events in the legal community. For instance, in May, he spoke at a luncheon honoring Greg Garre and later this month, will be a panelist at the ACS Supreme Court Review.

There is no magic formula for time management, Clement explained. But, by all accounts, he may have found it.

Supreme Court: Tide Change for Antitrust Plaintiff

Today, the Supreme Court issued a unanimous decision in favor of antitrust plaintiff, American Needle, Inc., a company that had previously manufactured and sold NFL-branded items, and which was challenging the NFL's exclusive licensing agreement with Reebok.  The Court concluded that "the NFL’s licensing activities constitute concerted action that is not categorically beyond the coverage of § 1 [of the Sherman Act]."  As former Solicitor General Paul Clement noted in a panel discussion earlier this month, this breaks a recent eight-case winning streak for antitrust defendants (in the Roberts era):

Quote: The Key Swing Vote . . . Justice Scalia?

[T]he one area of law where I do think that the sort of 5-4, "Where is Justice Kennedy going to come out?" dynamic does not hold true increasingly is the criminal docket of the Court. . . . [I]n some ways on the criminal docket, the key swing vote is actually Justice Scalia.

There are a number of cases in the Apprendi line of cases, other Sixth Amendment cases, also cases involving the Confrontation Clause, where Justice Scalia has [ruled in favor of the criminal defendant].

Paul D. Clement
Former Solicitor General and Partner, King & Spalding
Sixth Circuit Judicial Conference
May 5, 2010

There Are Always C-SPAN2 and C-SPAN3

Joe Wong likes that if C-SPAN does not help him fall asleep, there are always C-SPAN2 and C-SPAN3.

Tonight at 7pm (ET), C-SPAN will televise a panel discussion on the current Supreme Court term, moderated by Elena Kagan, before her nomination, and including former Solicitor General Paul Clement. This is part of C-SPAN's America and the Courts series, televised every Saturday night at 7pm. This link has recent programs available, including presentations by Supreme Court justices, among them a joint discussion with Justices Scalia and Breyer about their views of the Constitution.  Recent programs also include a speech by Fourth Circuit Judge Roger Gregory, as well as a Moot Court on health care and immigration status.