My final Roberts pre-confirmation vote posting
The last word... for now
[update: bumped up, b/c of the post immediately below this one]
Since we are about to enter the eye of the storm - the period at the center of all the howling winds and disruptive outbursts - during which Roberts will be, if possible, at even higher levels of scrutiny than heretofore, this will be my last post on Roberts before his confirmation vote.
For those who prefer to skip lightly over legal and political tea-reading and read instead the far more interesting linguistically-inclined posts, I provide this convenient break:
And that's it for now. Until John Roberts has received an up or down vote from the Senate, expect to see no more Roberts posts here.
[update: bumped up, b/c of the post immediately below this one]
Since we are about to enter the eye of the storm - the period at the center of all the howling winds and disruptive outbursts - during which Roberts will be, if possible, at even higher levels of scrutiny than heretofore, this will be my last post on Roberts before his confirmation vote.
For those who prefer to skip lightly over legal and political tea-reading and read instead the far more interesting linguistically-inclined posts, I provide this convenient break:
(show)
Howard Bashman (more than just a hat tip this time; he's hosting, by permission, the article at his blog) provides this interesting look into the Real Roberts, a Daily Journal article by staff writer Lawrence Hurley entitled ROBERTS' PASSION FOR HISTORY OF COURT MAY AFFECT HIS VOTES - to which I can add only two things:
- yes, and
- duh.
But more importantly, the article points out a number of truisms, at least one of which I want to highlight because it comes out of the mouth of the Man Himself.
It points out that Roberts is the quintessential Supreme Court insider; a former Clerk (and thus a member of the Elect, in A3G's amusing terminology), which makes this situation analogous to an entirely sensible (although hardly mandatory) business practice: hiring from within.
It also makes the entirely sensible point, through a couple of quotes by Elliot Mincberg, VP of PFAW, or People for the American Way for those of you who don't follow politically partisan lobbying groups ( i.e. normal people), that what really matters to his kind of group is this: discovering Roberts' positions on certain politically key issues (including presumably abortion, death penalty, gay rights) — meaning, not how he feels about abortion, which based on his early advocacy and faith we would expect to know, but how he will apply his legal reasoning to that kind of controversial case:
Unlike much (but not all) of the reporting this season on the Roberts confirmation process, this article focuses not on the campaigny-ness of it all, but rather on an aspect of the man himself, in a way that actually might be relevant to the job.
Final Topic: Roberts on how to Win at the Supreme Court
I will close by noting one particularly good and insightful comment from the article, and it does indeed come from Roberts. By his own statistics, taken from 1980 to 2003, the party whose side is asked more questions by the Justices tends to lose, "usually." The way to win cases at oral argument, he then noted in a speech for the Supreme Court Historical Society, can be determined:
So: maximize your postural position (try to be a prevailing party, try to have the burden of proof in your favor, try to have as many ways as possible to be affirmed or at least not lose), and then put your opponent over the barrel. Point out in reply briefs the unanswered questions, the glaring flaws, the leaps of logic and flights from fact, and most especially point out where the opponent is disregarding law or precedent.
The result will be, as Roberts well knows and as we all should too, that the highly prepared advocate will wow the bench. The disadvantaged opponent will be discomfited, at a loss, in a weaker strategic position. As a result, they will draw much more probing and perhaps scornful or even furious questioning from the Bench, typified by sarcasm or interruption. Read or listen to the transcripts of oral arguments, and you will start to see or hear something interesting:
The party that loses will often lose at oral argument. One cannot win, but one can avoid losing, by preparing for certain moments.
These moments, the points on which the case turn, arrive when a highly prepared Justice and an inadequately prepared or inadequately armed advocate clash head on. In general, the Justice wins. One might even call it a rule.
So, how can you avoid having an unsuccessful clash with a Justice at oral argument? Well, it depends on what they're doing to you.
For your convenience: A quick summary of how the Justices behave at oral argument
And that's about all I have to say about Winning - until I think of something else.
- yes, and
- duh.
But more importantly, the article points out a number of truisms, at least one of which I want to highlight because it comes out of the mouth of the Man Himself.
It points out that Roberts is the quintessential Supreme Court insider; a former Clerk (and thus a member of the Elect, in A3G's amusing terminology), which makes this situation analogous to an entirely sensible (although hardly mandatory) business practice: hiring from within.
It also makes the entirely sensible point, through a couple of quotes by Elliot Mincberg, VP of PFAW, or People for the American Way for those of you who don't follow politically partisan lobbying groups ( i.e. normal people), that what really matters to his kind of group is this: discovering Roberts' positions on certain politically key issues (including presumably abortion, death penalty, gay rights) — meaning, not how he feels about abortion, which based on his early advocacy and faith we would expect to know, but how he will apply his legal reasoning to that kind of controversial case:
"He has an understanding of the history and traditions of the court, but his views on applying that is the $64,000 question," Mincberg said.Also, the entirely reasonable point made by Kilpatrick Stockton's Mark Levy, that membership in a group says _nothing_ about one's own views, unless it does:
He added that respect for the court doesn't necessarily translate into a respect for court precedents.
Mincberg noted that "there is a precedent for overturning precedents."
He [Roberts] has been an active member of the Supreme Court Historical Society and other groups, such as the American Academy of Appellate Lawyers and the Edward Coke Appellate Inn of Court, both of which have a stated mission to promote appellate advocacy.Again, duh, but there are lots of otherwise reasonable people out there who miss this simple idea, and instead tar supposed enemies with a broad brush.
As Mark I. Levy, who heads the appellate advocacy group at Washington firm Kilpatrick Stockton, noted that the inn and the academy are invitational only and number many prominent attorneys among their members.
"That tells you something about John's standing with his peers," Levy said.
But Levy, who is a member of both, stressed that membership has no bearing on Roberts' political views.
Both Mincberg and Jay Sekulow, chief counsel of the right-leaning American Center for Law and Justice, are, for example, members of the inn, Levy said.
Unlike much (but not all) of the reporting this season on the Roberts confirmation process, this article focuses not on the campaigny-ness of it all, but rather on an aspect of the man himself, in a way that actually might be relevant to the job.
Final Topic: Roberts on how to Win at the Supreme Court
I will close by noting one particularly good and insightful comment from the article, and it does indeed come from Roberts. By his own statistics, taken from 1980 to 2003, the party whose side is asked more questions by the Justices tends to lose, "usually." The way to win cases at oral argument, he then noted in a speech for the Supreme Court Historical Society, can be determined:
"[T]he secret to successful advocacy is simply to get the court to ask your opponent more questions," he concluded, perhaps with tongue in cheek.With due respect, the journalist missed the point. The goal is to in fact force your opponent to have the worse of the argument, by first giving them the worse of the briefing arguments (on paper, before argument).
So: maximize your postural position (try to be a prevailing party, try to have the burden of proof in your favor, try to have as many ways as possible to be affirmed or at least not lose), and then put your opponent over the barrel. Point out in reply briefs the unanswered questions, the glaring flaws, the leaps of logic and flights from fact, and most especially point out where the opponent is disregarding law or precedent.
The result will be, as Roberts well knows and as we all should too, that the highly prepared advocate will wow the bench. The disadvantaged opponent will be discomfited, at a loss, in a weaker strategic position. As a result, they will draw much more probing and perhaps scornful or even furious questioning from the Bench, typified by sarcasm or interruption. Read or listen to the transcripts of oral arguments, and you will start to see or hear something interesting:
The party that loses will often lose at oral argument. One cannot win, but one can avoid losing, by preparing for certain moments.
These moments, the points on which the case turn, arrive when a highly prepared Justice and an inadequately prepared or inadequately armed advocate clash head on. In general, the Justice wins. One might even call it a rule.
So, how can you avoid having an unsuccessful clash with a Justice at oral argument? Well, it depends on what they're doing to you.
For your convenience: A quick summary of how the Justices behave at oral argument
(show)
O'Connor when asking about a key (potentially adverse and controlling) precedent waved off with a weak comment in the brief about how the "facts were not similar" would often ask the oral advocate to explain themselves, and worse, to pretend that the Court had in fact decided that the unwanted precedent (perhaps because it was adverse?) was binding law.
Explain, then, she would command, how you would have us rule.
A successful advocate does not find themselves in such positions very often. A hapless advocate will quibble with the question, attempt to dodge its sting, or give an otherwise unsatisfactory answer.
Scalia was and is famous for his sarcasm, and rightly so; I'll cover this in the Scalia Mega-Post, and not all negatively. He heaps derision upon the precedents he thinks are mistaken, on the arguments he thinks are foolish, and on his colleagues who have gone awry. Some of his quips are good-humored and draw a rumble or a roar of amusement from the packed crowds watching a high profile case. Others are wicked icicles of disdain.
Thomas is virtually always silent at oral argument. I've heard it asserted that it is because he is incurious. Nobody who has heard him speak would believe this. In fact, his preparation is typically so thorough, so comprehensive, that he knows (and is correct) that no question he wishes to make during the argument that can be made based on the briefs will sway his vote. Whether he makes his actual decision based on the brief or not, I do not know. Some judges are so swayed that they will not change their mind barring a catastrophic performance by their favored side at argument. It is unethical, in fact, to decide before the case is submitted what you believe the outcome ought to be. But it is entirely proper and judicious, and entirely human, for a judge to think they know know what the law is in general, and to remain uncommitted on the outcome until all of the litigants' arguments have been made.
Rehnquist is fairly probing; some of the others also, although I have made less of a study of their interrogations. Breyer constructs convoluted hypotheticals (money quote from the 2/ 7/ 2003 article: "He often draws laughs, as he did with an oddball remark last fall about whether a "no pets" sign in a park might not "necessarily apply to a pet oyster." "). As to the others, I have nothing to add at this time, will reserve the rest of my time.
Explain, then, she would command, how you would have us rule.
A successful advocate does not find themselves in such positions very often. A hapless advocate will quibble with the question, attempt to dodge its sting, or give an otherwise unsatisfactory answer.
Scalia was and is famous for his sarcasm, and rightly so; I'll cover this in the Scalia Mega-Post, and not all negatively. He heaps derision upon the precedents he thinks are mistaken, on the arguments he thinks are foolish, and on his colleagues who have gone awry. Some of his quips are good-humored and draw a rumble or a roar of amusement from the packed crowds watching a high profile case. Others are wicked icicles of disdain.
Thomas is virtually always silent at oral argument. I've heard it asserted that it is because he is incurious. Nobody who has heard him speak would believe this. In fact, his preparation is typically so thorough, so comprehensive, that he knows (and is correct) that no question he wishes to make during the argument that can be made based on the briefs will sway his vote. Whether he makes his actual decision based on the brief or not, I do not know. Some judges are so swayed that they will not change their mind barring a catastrophic performance by their favored side at argument. It is unethical, in fact, to decide before the case is submitted what you believe the outcome ought to be. But it is entirely proper and judicious, and entirely human, for a judge to think they know know what the law is in general, and to remain uncommitted on the outcome until all of the litigants' arguments have been made.
Rehnquist is fairly probing; some of the others also, although I have made less of a study of their interrogations. Breyer constructs convoluted hypotheticals (money quote from the 2/ 7/ 2003 article: "He often draws laughs, as he did with an oddball remark last fall about whether a "no pets" sign in a park might not "necessarily apply to a pet oyster." "). As to the others, I have nothing to add at this time, will reserve the rest of my time.
(hide)
And that's about all I have to say about Winning - until I think of something else.
(hide)
And that's it for now. Until John Roberts has received an up or down vote from the Senate, expect to see no more Roberts posts here.
Posted by Eh Nonymous on
Monday September 5, 2005 at 8:13pm
The hurricane metaphor is no longer clean; I will plead innocence of wrongdoing, since I wrote it before Katrina was on my metaphorical radar screen, and before the ensuing devastation and loss of life. I regret the disaster, but I will not rewrite a blawg post merely because a metaphor is distasteful for now. Unfortunate, yes. Demanding that kind of rewriting of my own thoughts, no.
We had a discussion about the hearing today. The prof noted that Roberts was absolutely unflappable (and at a clear advantage) since he is, by training a lawyer - and a experienced one at that. It is it any wonder that none of the Senators (some of them without trial training) could not puncture his composure.
[EN: No, JGR was and is an implacable force for ludicity- a one-man ravaging horde of rapid reasoned response. If a "hot bench" couldn't deflate him - and my understanding is it never did and never has - then a mere posturing passel of pompous politicos stood no chance of fazing the candidate.]
*Not all comments welcome. Flippant, facetious, fierce, or fatuous, fine. Fraudulent, felonious, fabricated, facially insufficient, and farkin' futile, fuggeddaboutit.