Tuesday, March 3, 2009

Big Day at the Big Court

This morning I went to an argument at the Supreme Court for the first time in a few years. My appetite was whetted by a story in Monday's Washington Post. Early arrival was vital because this was one of the one or two major cases each year that packs the Supreme Court bar section located right behind where the attorneys make their arguments in the courtroom.

The case was taken from the Supreme Court of West Virginia and arose from a corporate battle between a big coal company and a small one. The big one lost in the trial court, so it went out and spent $3 million to elect a Supreme Court judge who would vote its way on the appeal. He did--they won, 3-2, in West Virginia. On to the Supreme Court of the U.S.

Should this judge have recused (taken himself out of) from the case? That was the issue--or, is there a constitutional standard that requires a fair trial with no probability of bias on the part of the judge(s)?

The biggest attraction of this argument, aside from the general interest of the case and point at issue, were the two advocates at the Supreme Court. Theodore B (Ted) Olson was Solicitor General under Bush I and is a very conservative lawyer at Gibson Dunn in Washington. Andrew L (Andy) Frey, formerly Deputy Solicitor General (in charge of criminal cases) for many years, and now at Mayer Brown, has also been a regular advocate. Ted Olson argued and won Bush v. Gore. Andy Frey managed to get the Supreme Court to adopt a totality of circumstances test in ruling on Miranda appeals and also got them to put a cap on punitive damages, in the interest of corporate defendants.

Uncharacteristically, Olson was arguing the "activist" (dare I say liberal?) side of this case, asking the Supreme Court to require a fair trial that means recusal of a judge who has the appearance or probability of bias. Frey argued the side of the corporation that put up the $3 million and argued that allowing this kind of required recusal would "open the floodgates" to these kinds of claims and that there was no constitutional standard here.

It was fun watching Olson have to deal with hostile questioning from Justice Scalia and Chief Justice Roberts, his usual compadres. Frey was put on the defensive mostly by Justices Ginsburg, Souter, and Stevens. Justice Kennedy tried to get both to answer his questions. Both advocates have the art of gently deflecting a question toward the answer they want to give down to an art.

The lineup of justices sounded familiar, including Justice Kennedy's searching for a viable middle ground to make, in effect, the decision. This did make the result harder to predict but it did seem that Olson had the better day at the lectern. He easily brought up relevant caselaw and seemed more at ease than Frey, who usually handles himself more smoothly.

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