April 27, 2004

My First Oral

by PG

Today I attended my first Supreme Court oral argument, Cheney v. U.S. District Court for the District of Columbia. Despite the less-than-exciting issues involved (separation of powers, jurisdiction), the case drew a decent crowd. I would have thought that the vice-president's being involved would have brought more people out, actually, and initially just drove by to see how long the line was, figuring that the people who reportedly "began lining up the night before" would be a large group. Coincidentally, as I drove down Constitution Ave., I saw ducks walking in the grass along the sidewalk. This struck me as a propitious sign for my getting into the courtroom.

I've unsuccessfully tried to attend oral arguments twice previously, so I was excited to get inside, particularly as one of the last dozen people seated. I stowed my belongings in the locker room and took my place on a chair at the back. The courtroom features several long benches, both in the middle and on either side, and then additional chairs wherever they can be squeezed in.

As often happens while waiting to get inside the Supreme Court, the people in line had bonded and we talked in whispers in the half hour before the justices arrived. A gentleman seated behind me pointed out that Solicitor General Theodore B. Olson, who as the administration's counsel was arguing for Cheney, was wearing tails. This is not an affectation peculiar to Olson; according to an interview, advocates traditionally wear formal attire to argue before the Supreme Court. Before the arguments started, several members of the Illinois state bar, including Cook County Judge Robert W. Bertucci, were admitted to that of the Supreme Court.

Each of the justices who participated heavily seemed to have their own idea about what was important in the case. Scalia focused mainly on what made someone a member of a government commission. His own view, which he stated clearly and repeatedly, was that anyone who had a vote was on the commission. If non-governmental employees such as Ken Lay of Enron had a vote, they were members of Cheney's task force; if they didn't have a vote -- regardless of whether or not anyone else did -- then they weren't members, de facto or otherwise.

Breyer was surprisingly mean to the attorney for Judicial Watch Inc. When Orfanedes tried to argue that non-governmental employees could influence policy strongly even without having a formal vote, the justice said that Congress, in passing the Federal Advisory Committee Act, could not have intended government to develop policy in a cocoon. Orfanedes began to reply, "I don't think--" and Breyer interrupted with, "That's right, you don't think."

I found the justices' hypotheticals about cocoons and such to be a bit silly. FACA, as one might guess from its name, applies only to committees, and a phone call from a cabinet member does not create a committee. Moreover, Judicial Watch & Co. are not saying that these committees should have their access to private individuals limited, only that substantial contributions from non-governmental employees make those people de facto committee members, and thus their identities should be known to a public that did not elect them nor hire them.

Olson's spectre of non-stop lawsuits to have this information disclosed also was excessive. The executive branch presumably has a limited number of formal committees, and a limited number of people outside the government who strongly affect what those committees come up with. Moreover, to pretend that "there is no such thing as a de facto member" stretches credulity. Merely because certain people are not named to the government commission does not mean that they do not have as much as, or more, influence than those whose names are listed.

Of course, the fundamental basis of the lawsuit is the Sierra Club's pique at having environmental groups shut out of the decision-making process while energy industry executives were consulted. Sierra is fine with having private individuals and organizations lobby the government and try to affect policy -- heck, that's the business they're in. What bothers them is the secrecy and one-sidedness of the Bush Administration's invitations. If the cocoon is one extreme, having policy written by the industry affected by it, with little or no moderating influence by public interest groups, is the other.

O'Connor and Ginsberg directed their questions mostly to what the government did wrong in this case, whether by commission or omission. The former wanted to know why the government wasn't directly challenging the constitutionality of FACA, and the latter was puzzled by the government's partial compliance with the FACA request if the Administration's position truly is that the original lawsuit is illegitimate.

Unsurprisingly, Justice Thomas was quiet throughout oral arguments. At the beginning he was leaning back in his chair, his head also tipped back, but a couple of minutes into Olson's argument someone handed him something and he abruptly sat up, put on his glasses and paged through it. It didn't seem to produce any questions, though; by the end of Olson's time, Thomas was back to leaning.

Stevens was the first to posit the aspect of the case I found really head-scratch-worthy: What relief do Judicial Watch and the Sierra Club seek from winning this lawsuit? Olson claimed that the discovery -- the turning over of information in order to fight the case -- is "vastly broader" than what they would have gotten if the government had simply complied with the FACA request. In other words, just by getting the tools they claim to need to pursue the suit, they will have gotten what they wanted in the first place: Cheney's records. As Souter put it, is discovery inherently the win?

Hillary Clinton's 1993 health care task force had to turn over its records because the First Lady was deemed not to be a government employee, and thus her committee fell squarely under FACA simply by virtue of her being on it. Though Clinton was mentioned briefly, Cheney's case is different. The vice president obviously is a government employee, and the official administrative record shows only other government employees as being on the energy task force.

Incidentally, Olson's long experience becomes very appreciable when seeing him during oral arguments. He never became visibly flustered, and always spoke in a calm, even tone, addressing justices by name. Morrison, the attorney for Public Citizen, was far more excitable; he would raise his voice and refer to the justices simply as "Your Honor." Possibly he was concerned that he would be mildly rebuked, as some advocates have been in the past, for getting the justices mixed up with each other.

At the end of arguments, when I walked past the enclosure where the organizations suing Cheney were holding a mini-press conference, a duck was splashing around in the fountain. How it got there (brought by the Sierra Club?) is a mystery to me. During that conference, someone asked one of the attornies if he thought Scalia had treated him fairly. The attorney gave the sensible answer that while he still thought Scalia should have recused himself from the case, the justice had acted without prejudice during oral arguments.

April 27, 2004 04:56 PM | TrackBack

Very nice write-up. I just attended my second supremes argument yesterday (which I blogged here), tho not quite in as interesting as case as this.

As for Ted Olson, oddly enough he argued at the first case I heard--Verizon v Trinko, where he (and Justice Scalia) both looked rather flustered & clearly had not done even a minimal amount of homework. See page 23 of the transcript here.

There, the unnamed questioner (Scalia), says "So the Telecommunications Act supersedes the Antitrust laws, right?" Olson says yes, he agrees with that.
Moments later a flabbergasted Breyer asked "how in the world can you think that when the 1996 Telecom Act itself has an express Savings Clause saying explicitly that it does NOT supersede or modify the antitrust laws??"

It was rather amusing, and shows that everybody--even the brilliant & powerful--sometimes forget to do their homework or just generally look like fools.

Posted by: Visible Hand at April 27, 2004 05:09 PM

Whoops, I gave the wrong link for the transcript. You can find it here.

Posted by: Visible Hand at April 27, 2004 05:10 PM

Not exciting?!? Separation of Powers is where it's at! You want boring? Try securities law. Zzzzz.

Posted by: Brian at April 27, 2004 05:34 PM

Separation of powers, federal jurisdiction--this is why I went to law school. I totally second Brian, that stuff is amazingly interesting to study.

Posted by: Nick Morgan at April 27, 2004 06:00 PM

Nice. My grandfather used the word propitious a few times. I haven't heard that word used much.... :)

So I thought much of the argument would be about executive privilege. It seems like much time was spent on the statutory issue(s)?

Posted by: Balasubramani at April 27, 2004 10:46 PM

Just as a point of information, Alan Morrison's argued probably a dozen cases in front of the Supreme Court (without looking it up, I think today was #12), and is on a first-name basis with several of the Justices. I can't speak for how he did today, having not listened or read yet, but whatever flaws his argument had certainly weren't there as a result of inexperience.

Posted by: RJM at April 28, 2004 01:28 AM

Is there any credible legal literature concerning the effectiveness of oral arguments in convincing the Justices as opposed to the contents of counsel's briefs? Has any Justice ever indicated that the orals persuaded a change in his/her position? Keeping in mind the time limitations upon the oral arguments as compared to the time and effort of counsel in preparing their briefs, I find it difficult to believe that orals accomplish that much other than permitting the Justices to joust with counsel and sometimes with each other, and perhaps creating a job market for commentators on opining as to what the Justices may decide.

Posted by: Shag from Brookline at April 30, 2004 07:16 AM

Attorneys from the Solicitor General's Office, other government attorneys, and the occasional private attorney, will follow the tradition of wearing "morning clothes" to court (the Clerk of the Court and the Marshal also wear a morning coat during court sessions). That is, the tails and silver (grey) tie that you observed.

There was a "controversy" several years ago when one female Deputy Solicitor General wore business attire that did not follow the "traditions" for women who argued for the government (I believe her suit was brown, instead of grey or navy).

While the attire of the SG is a nice tradition, the criticism directed toward this one deputy was not justified nor worthy of the Courts time.

Posted by: ralph at April 30, 2004 02:52 PM
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