Follow-up on Supreme Court Practices
on Mar 3, 2006 at 3:37 pm
I received two thoughtful emails that made very interesting points.
First, Political Science Professor Larry Baum of Ohio State University wrote to me with the results of his own research:
For the 1994 and 2004 terms, I looked at all the oral arguments made in the term, excluding arguments by lawyers for the federal government. In other words, a non-federal lawyer was counted once for each argument in which the lawyer participated. For each argument, I then looked at how many cases the lawyer making that argument had made in the five terms that ended with the term in question: that is, 1990-94 terms for 1994, 2000-04 terms for 2004.
Here is what the results looked like. Only 10 percent of the arguments made in 1994 were by lawyers who argued more than two cases in 1990-94, and only 1 percent by lawyers who argued more than five cases. In contrast, 27 percent of the arguments made in 2004 were by lawyers who argued more than two cases in 2000-04, and 13 percent by lawyers who argued more than five. That strikes me as a fundamental change in a relatively short time, and it underlines the point you make in the post.
Second, a government attorney made the excellent point that the specialization of the states in litigation before the Court is noteworthy:
I see that you mentioned some State Solicitors in passing, such as Sutton and Greg Coleman. But since you went beyond private practice to mention the public-interest repeat players, then State Sols as a category deserve a mention, too. You of course know how much we States have improved over the years, and have followed the same models as the firms. The primary model has been getting USSC clerks like Ted Cruz in TX, Kevin Newsom in AL, Gary Feinerman in IL, Caitlin Halligan in NY and so on. In numbers, some have racked up arguments fast. Doug Cole of Ohio has argued 5 times in 3 years, including blockbusters like Cuno this week and Cutter v. Wilkinson. Cruz, Newsom, and others have each had a few repeats, too. Also, some States have gone with non-USSC-clerks, more along the Olson/Ennis model within their States, like Mike Moore in TN, or Joel Bertocci in IL (IL Sol in late 90s to about 2002, now at Mayer Brown in Chicago, was AUSA or so, I think). They, too, have racked up numbers, and have done well in their arguments in quality.
I think this trend is noteworthy because it gives non-DC residents a chance to have a real practice, AND it has given the States better representation than they had in the 80s and before, when the Asst. AG who had the case just took it all the way (as some States still do, with, um, mixed results).
Also important is the critical role of Dan Schweitzer and NAAG in fostering the trend. He has done so much through the moots, and thru coordinating networking for amici and everything. We have all relied heavily on Dan and the NAAG organization to do what we’ve done in the States.
I agree entirely.
