Thursday, March 29, 2007

Sparring with Scalia

One of my former (and one of my favorite) law professors, Arthur Miller, took a shot at Justice Scalia during an oral argument today and Scalia took a shot back. Here's the Washington Post's coverage of the fun exchanges:

A Bit of Brooklyn in the Supreme Court
Thursday, March 29, 2007; A17
Deference, with maybe just a touch of obsequiousness, is the rule for lawyers taking their cases before the nine justices of the Supreme Court.
So when Harvard law professor Arthur R. Miller yesterday mixed it up a little with the court's ever-ready pugilist Antonin Scalia, some of those in the packed courtroom later talked about it as one of those did-you-hear-that moments at the court.
Miller, whose white hair and dark, bushy eyebrows are familiar from his legal commentaries on ABC and his debate-style shows on PBS, is representing investors who want to sue Tellabs, alleging securities fraud. [Story, Page D3.]
Congress has set a high bar for such lawsuits: Plaintiffs must show not just credible allegations but a "strong inference" that the company acted with wrongful intent.
The justices wondered whether you could assign a percentage to such a "strong inference," a 33 percent chance plaintiffs could convince a jury the allegations were true, a more than 50 percent chance?
"I think it's 66 2/3 ," Scalia said, pulling another number out of the air.
"Is that because you never met a plaintiff you really liked?" Miller asked the conservative Scalia.
The room erupted in laughter. Scalia smiled. A little.
Miller backpedaled. A little. "I took a liberty there with the justice," Miller said.
But it was not over.
Scalia's chance came later, when Chief Justice John G. Roberts Jr. prepared to pounce on one of Miller's arguments. Miller stopped him first.
"Don't take me literally on that," Miller said. "For heaven's sakes, I'm from Brooklyn. I'm very colloquial. I'm very sorry about that.''
"Let me write that down," Scalia said with a satisfied smile. "We should not take you literally. All right."
Roberts was set to rule. "Okay, you two are even now."
-- Robert Barnes


Anonymous said...

It may be funny. But I'll bet the client is not laughing at the fact that its only lawyer in the Nation's highest court pissed off at least 11.1% of the decision-makers of their case, if not 22.2% or 33.3%, or more. Sort of proves the adage that those who can't [should just] teach.

Anonymous said...

Screw taking it in silence -

Are you just going to smile and take defeat? Or, are you going to get beat while swinging back! Good job to the man from HAAAVAAD.

On another note, I am curious what you AUSAs out there, if you are not too timid to write about it, have to say about the following. If you are too scared to write in from your office computers, I suggest a short walk to the Wine Bar, a place where the computers have free access to the internet and the FBI (probably?) is not monitoring:



“I would never, ever make a change in a United States Attorney position for political reasons, or if it would in any way jeopardize an ongoing serious investigation. I just would not do it.”
Alberto Gonzalez testimony before the Senate Judiciary Committee January 18, 2007

Gonzalez’s Chief Of Staff D. Kyle Sampson ranked every United States Attorney for purposes of considering who to fire and replace. Chicago US Attorney Patrick Fitzgerald was ranked in the group of US Attorneys who “have not distinguished themselves.” Ask Scooter Libby about Fitzgerald’s abilities as a prosecutor.

The Senate renewed the Patriot Act containing a little known item allowing the President to appoint US Attorneys without Senate confirmation. This month the senate voted to revoke that provision of the act.

David Iglesias, US Attorney for New Mexico, was fired after complaints by US Senator Pete Domenici that Iglesias was not quick enough to complete election fraud investigations of several democrats before the last election in November. Iglesias said Domenici called him at home to discuss the pending investigation before the November election. Iglesias refused to discuss the matter. Domenici complained to President Bush several times. No Democrats were indicted before or after the election. When New Mexico State Republican Party chairman Allen Weh mentioned Iglesias to Karl Rove, Rove replied “he’s gone.” Iglesias was one of the 8 fired US Attorneys. Iglesias recently wrote an Op Ed piece for the NY Times in which he stated that his office had a 95% conviction rate, had filed a record number of prosecutions, and had conducted and prosecuted the largest political corruption cases in New Mexico’s history.

San Diego US Attorney Carol Lam was fired for not being loyal enough. Lam’s political investigation put long time Republican Congressman Duke Cunningham in jail for massive fraud with, and kickbacks from, defense contractors. Lam was continuing the investigation into other Republican lobbyists and donors at the time she was fired.

US Attorney Chris Christie of New Jersey was not fired. Just before the November elections, Christie announced a high profile investigation into Democratic Senator Bob Martinez. The Republicans would have held the senate if Martinez has lost the election. The announcement of the investigation was quickly incorporated into last minute attack ads by Republicans against Martinez. Had the ads been successful, the Democrats would not be in the position of having the Senate Judiciary Committee issue subpoenas into the US Attorney scandal.

Rumpole opines:

We are witnessing the politicization of the federal prosecutors office on a scale never seen before. Not content with awarding prominent Republicans with US Attorney positions, the Bush administration has sought to influence the prosecutors appointed to those positions to conduct investigations against Democrats during election periods for the purposes of maintaining the Republicans grip on power.
The result is not just the current scandal, but the public’s loss of confidence in the integrity of the prosecutor’s office.

Scene: An airport in Africa. The fog is rolling in. An airplane roars and is about to take off in the midnight air.

Two men in trench coats face each other. One man (Major Strasser) is dialing a phone to stop the plane from taking off. The other man (Rick) tells Strasser to put down the phone. Strasser and Rick fire their weapons almost simultaneously. Strasser’s shot is wide, Rick’s is true, and Major Strasser falls down, mortally wounded.

Through it all, the local police Captain, Captain Renault witnesses the entire event. Seconds later Renaults officers arrive in force.

Renault: “Major Strasser has been shot.” Renault looks at Rick. Rick looks alarmed. Renault looks to his officers:

Renault: “Round up the usual suspects.” The police salute and hurry off.

This is what our Federal Prosecutors Offices are about to become- lackeys of the Bush administration who round up the usual suspects to placate the President and his Rove backed henchmen.

See You In Court – representing the usual suspects.

Anonymous said...

Even at Haaavaaad, winning the client's case should outweigh winning a battle of egos. In the end, did Miller address the percentage concern that three of the justices were raising, or did he simply leave the subject unanswered with a stupid insult? You only get 30 minutes to address the real issues on the justices' minds, so why waste any of that time in an ego contest. In short, Miller's performance as a courtroom advocate flunked.

Anonymous said...

Wrong. Miller was witty. What's the big deal? Do you really think that comment is going to sway Scalia one way or the other? Not a chance. If anything, it endeared Miller to some of the other Justices. Even Thomas seemed to think it was hilarious. Loosen up dude.

Anonymous said...


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Anonymous said...

OT--Yesterday during his testimony we learned that the only criminal case ever tried by Abu Gonzo's Chief Asst. AG and Rove look-alike, D. Kyle Sampson was in 2004 in the SDFL--apparently it was a felon in possession case w/ a PWID "narcotics." Sampson testfied in response to questioning by Sen. Sheldon Whitehouse (D-RI) that he was "specially assigned" to USAO SDFL to try that case. WHY? What was so special about a case like that that the Dep. Chief Asst. AG was sent down to SDFL try it? Inquiring minds want to know. Got any info Mr. SDFL?

Anonymous said...

Of course the client ought be paid attention to. If you've ever seen Justice Scalia in Court, I would want my attorney to have that sort of banter with him. A full moon might be innappropriate, but, I'd pay big money to see that.

More important, without even knowing the issues, Scalia's going to vote whatever way he chooses. The "literally" butt of the joke I would assume is from his strict constructonist approach. Regardless, he will rule in a way he has always interpreted the law. Miller didn't do anything that wouldn't happen anyway. CJ Roberts I thought ended it really well.

So you know the first time I saw oral argument in The Court, one of the attorney's mothers wept on the steps afterwards following a brutal exchange with J. Scalia. People had to console her. I'll never forget that. Miller's joke was nothing compared to what some ought really say. But, he won't ever recuse himself.

Anonymous said...

What on earth shall I do. I'd really like to comment on this but I have been advised by "others" to utilize the Patriot Act like lightening and thunder. Let me see if they try trace this post. The NSA do a lot more than you might know.

Ok, they're all following me now. Must go. trying to hit enter butt