RBG Clerk Trifecta | Learned Counsel | What Justice Thomas Regrets

NATIONAL LAW JOURNAL Supreme Court Brief POWERED BY LAW.COM

Tony Mauro Marcia Coyle Feb 20, 2018

The nine are back in town and the February argument cycle has begun. In what appears to be a first, three former clerks of Justice Ruth Bader Ginsburg—will argue in the same case. Plus, it's criminal justice week in the argument cycle and we take a look at the high-powered lawyering on the defendants' side—an area in which good lawyering has been lacking, according to two justices. Justice Clarence Thomas shares some regrets about law school, and two justices show up to honor a former Justice Department appellate lawyer. We welcome your views on what the court is doing (and not doing). Reach out to mcoyle@alm.com or tmauro@alm.com.

Coming Today: a Ginsburg Trifecta Justice Ruth Bader Ginsburg will appear before some familiar and friendly faces today. No, it’s not another talk before a law school or synagogue, like the nine such events she attended during the Supreme Court’s winter break, many of themmarking her 25th anniversary on the high court. Today she will be hearing an oral argument in which all three lawyers who rise to speak were former law clerks of hers. Needless to say, they like her, and she likes them. It could be the first time that three former clerks of a single justice will be arguing before their justice. (Please help us out here: Do you know of any other trifectas like this? University of California Hastings College of the Law professor Rory Little, who previewed the case for Scotusblog, thinks it is a first, but it’s hard to be certain.)

The case is City of Hays, Kansas v. Vogt, an important test of the Fifth Amendment’s protection against forced self-incrimination. At issue is whether the Fifth Amendment is violated when incriminating statements are used at a probable cause hearing, not at a criminal trial. The city of Hays argues that the Fifth Amendment is a trial right, not a pre-trial right, and will be represented by University of Virginia School of Law professor Toby Heytens, a director of the school’s Supreme Court clinic and a Ginsburg clerk in 2002 and 2003. Heytens, formerly an assistant in the U.S. solicitor general’s office, was appointed last month as Virginia’s solicitor general. His first day on that job will be tomorrow, Feb. 21. Arguing on the side of Hays will be Elizabeth Prelogar, a 2009-2010 clerk for Ginsburg and a current assistant to the U.S. solicitor general who has been detailed to the legal team of special counsel Robert Mueller. On the other side of the aisle, defendant Matthew Vogt will be represented by Kelsi Corkran, a 2013-2014 Ginsburg clerk and partner at Orrick, Herrington & Sutcliffe. She will argue that the Fifth Amendment protection extends to forced incriminating evidence given at a probable cause hearing. (And if that’s not enough RBG clerk power, it should be noted that Orrick senior associate Daniel Rubens, who will be sitting second-chair with Corkran, is also a 2013-2014 Ginsburg clerk.) “I'm thrilled and excited to be sharing an argument with two other RBG clerks,” said Heytens. “The justice has been a great mentor and role model to me, and I'm sure the same is true of Elizabeth and Kelsi. I hope [Ginsburg] gets a kick out of it.” Corkran said, “I’ve heard great things about Toby and Elizabeth for years, so I’m looking forward to arguing against them. I’m sure we will keep each other on our toes.” Prelogar declined to comment. The coincidence is a perfect storm for Ginsburg; no one can say she is biased toward one side or the other. But she would not have to worry even if only one side was represented by one of her clerks. Former clerks who argue before their justice—it happens all the time—uniformly attest that they get no special favors during oral argument from their boss. “It was as though he never met me before,” recalled Jones Day of counsel Donald Ayer, who argued 17 cases before William Rehnquist, the justice he clerked for. “It’s not in a bad way, it was just his personality. He played it straight, all the way around.” Pictured left to right: Toby Heytens, Elizabeth Prelogar, Kelsi Corkran.

Pageant of the Masters  Last month, during a visit at the University of Houston Law Center, Justice Sonia Sotomayor complained about the lack of skilled Supreme Court advocates arguing on behalf of criminal defendants. Justice Elena Kagan voiced similar concerns in a 2014 event where she said, "Case in and case out, the category of litigant who is not getting great representation at the Supreme Court are criminal defendants." Well, there should be no complaints about the lawyering this week— "criminal justice week" at the high court—featuring some top veteran advocates on the side of criminal defendants. We've already introduced the RBG trifecta appearing in City of Hays, Kansas v. Vogt. Argued today before Vogt is another Virginia case: Currier v. Virginia. Stanford Law's Jeffrey Fisher, with more than 30 high court arguments to his name, represents Michael Currier in his argument that double jeopardy barred his prosecution on a felon-in-possession of a firearm charge after he was acquitted of breaking-and-entering and larceny charges. Fisher, a criminal procedure scholar and co-director of the law school's Supreme Court Litigation clinic, has often stepped forward for criminal defendants. He has successfully argued landmark cases involving the confrontation clause and the Sixth Amendment. He is just as versatile and expert on the civil law side. Assistant Federal Public Defender Kristin Davidson of the Western District of Texas will stand at the court's lectern for the first time tomorrow in Rosales-Mireles v. United States, which involves the standard for correcting a plain forfeited error in sentencing. Although a first timer, Davidson had an able assist from Sidley Austin partner Jeffrey Green. Co-chair of the National Association of Criminal Defense Attorneys' amicus committee, Green has long been involved in pro bono representation of criminal defendants and teaches in Sidley's Supreme Court Practicum at Northwestern University School of Law. And finally, Williams & Connolly partner Kannon Shanmugam is at the podium tomorrow on behalf of Los Dahda in Dahda v. United States. This is an unusual exclusionary rule case that doesn't involve the Fourth Amendment. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 has its own exclusionary rule. Dahda argues that a Kansas district court issued a defective wiretap order authorizing surveillance of cellphones outside of the court's territorial jurisdiction and the resulting evidence should have been suppressed. Shanmugam, a former assistant to the solicitor general, has argued more than 20 cases and, like Fisher, is often at the criminal defendant's side while also managing a docket of complex civil cases. Both lawyers are former high court clerks: Shanmugam to Justice Antonin Scalia, and Fisher to Justice John Paul Stevens.

Red "Letter" Day Chief Justice John Roberts Jr. and Justice Neil Gorsuch, both alums of the U.S. Justice Department, were spotted last week in the department's Great Hall for a ceremony honoring recently-retired Douglas Letter, who was director of the Civil Division appellate staff. Letter's official last day was Feb. 3. Widely respected, Letter had served in the department for 40 years. A former colleague, Robert Loeb, partner in Orrick Henderson & Sutcliffe, noted the justices' attendance on Twitter:

Regrets, I've Had a Few ... A pensive Justice Clarence Thomas offered some regrets about his law school experience during a conversation with his former clerk, Judge Gregory Maggs of the U.S. Court of Appeals for the Armed Forces on Feb. 15. In a program sponsored by the Library of Congress and the Supreme Court Fellows Program, Thomas said: "Yale was the perfect school for me. I've had my complaints for reasons after Yale. But Yale showed me where I needed to be. If I went back today, I wouldn't go with all these burdens of anger and self-restrictions. I would spend a lot of time in the Sterling library. I like chamber music, I'd go to that. I like debates. Kagan was at Yale. I should have gone to those lectures—I loved philosophy. It was all there. I didn’t go to anything. I was mad at the world. The law school was good for me because it showed me how much work I needed to do. In retrospect, it was small enough; it was academically challenging; the professors, to almost a person, were fair to me. It wasn’t a place to distinguish yourself because of the grading system."

Speaking of Thomas, the bar is buzzing about this weekend's New York magazine cover story re-examining sexual misconduct allegations against Justice Thomas in light of the Me Too movement. Jill Abramson’s report— titled “The Case for Impeaching Clarence Thomas”—opens with the groping claims against Thomas by lawyer Moira Smith that were first published by The National Law Journal in October 2016. Read Abramson's report here and our take here. Let us know what you think at tmauro@alm.com or mcoyle@alm.com.

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