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Monday, February 15, 2016

Controversial clients

Since the days of Robert Bork's failed nomination, the conventional wisdom has been that the best Supreme Court nominee is one who has been fairly reticent about how he would rule on specific issues.  The less said (and I guess, less written), the better.

But what about one's past as a lawyer?  Should the identity of one's clients play a role in either one's nomination or selection?  If a person is otherwise highly qualified, should the president decline to nominate that lawyer if she represented clients whose conduct some find particularly repugnant or controversial?

All of the "short-list" articles I have read so far tell me that either Sri Srinivasan and Jane Kelly are eminently qualified to serve on the Supreme Court. Yet in the comment section to one of these articles, commenters suggested that Jane Kelly should not be nominated because she was a public defender (because this may be unpopular with some Republicans), and this article cites as potentially problematic Srinivasan's previous work defending Jeffrey Skilling in his famous "honest services" appeal, and Exxon and another company in a pair of Alien Tort Act cases (rendering him potentially unpopular with some Democrats).       

At this rate, the Senate may never schedule hearings for President Obama's nominee.  So it really may not matter at all who the eventual nominee or who s/he represented while s/he was a practicing lawyer.  And I may be drawing too much from a comment section and the article to which I linked.  Nevertheless, I cannot help but find this line of inquiry troubling, particularly if it further narrows the pool of potential nominees. 

Posted by Miriam Baer on February 15, 2016 at 10:24 PM | Permalink


There's a special category of those criticized for positions taken for government as client. Yes, perhaps there is a client-choosing aspect in being the principal deputy SG or a state SG spot. But it's always seemed to me wrong to ascribe positions to government lawyers, especially when the positions are fairly routine institutionalize positions (e.g., defending statutes, defending convictions, etc.).

I've always been dismayed that Sen. Obama cited, in his speech opposing the Roberts confirmation, that his work in the SG'S office was on the wrong side of issues. Surely Patricia Millett and Sri Srinivasan have "wrong side" cases on their resumes, whatever angle you view from?

Posted by: Joe | Feb 16, 2016 12:22:58 PM

Asher is right with respect to some appellate practices, but my sense is that a lot of appellate practitioners avoid having practices that feature such a clear political angle. So while I think it can be fair to draw some lessons about a lawyer's likely ideology from the lawyer's practice as a whole, with appropriate attention to the role that potential conflicts played in developing that practice, I think it's problematic when a practitioner who has avoided a heavily political practice is judged out of context based on a particular case or client.

Posted by: Orin Kerr | Feb 16, 2016 2:56:57 AM

Appellate practice is rather political. I think we all understand that Michael Carvin, Paul Clement, Bert Rein, Ted Olson, Laurence Tribe, Paul Smith, Jeffrey Fisher, David Frederick, Walter Dellinger, and many others take cases to the Supreme Court because they really believe in those cases, and very often because they think the results they're advocating in those cases would be good as a matter of policy. For example, I'm almost certain that Carvin and Clement didn't *just* think that the text of the ACA and the Constitution compelled the results they were advocating, but also thought it would be a good thing if the ACA was unraveled or invalidated. I also don't think Laurence Tribe was a neutral on the election of Al Gore. Conversely, the fact that David Frederick or Paul Smith have never, as far as I can tell, represented anyone like Skilling or Exxon in the Supreme Court, even though they easily could (while Frederick has represented bushels of class-action plaintiffs in the Court), probably tells you something about their views. There's a certain kind of liberal appellate advocate who does take on corporate clients in contexts that some liberals would find questionable, and another kind of liberal appellate advocate that doesn't. (Keep in mind that appellate advocates aggressively bid against each other for Supreme Court cases; it isn't as if anyone is taking on Exxon's ATS case unwillingly or even passively.) And of course, there's a certain kind of gifted appellate advocate that seeks out federal public defense work, and another kind that doesn't. So while I take your point when it comes to many areas of legal practice - a small-town lawyer's clients, or even a corporate trial-level litigator's clients, probably don't say much about his views - I think appellate practice is very different.

Posted by: Asher Steinberg | Feb 15, 2016 11:59:41 PM

My recollection would be that our Fearless Leader faced similar questions in 2005—it was suggested that cases that he argued while at Hogan & Hartson suggested some troubling allegiances. But such criticisms came from outside the profession, and I suspect that these ones do, too.

Posted by: Simon | Feb 15, 2016 11:52:12 PM

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