Experts Discuss Pro Bono Representation in the Supreme Court

February 13, 2012 —

Pro bono representation in the Supreme Court for those who can’t afford it is obviously a good thing — and to a client facing a death sentence or deportation, an experienced lawyer familiar with the workings of the Court would be the obvious choice.

But is it always in the client’s best interest to have a “specialist” take over a case at the Supreme Court level? What about the lawyer who’s had the case from the beginning and would like nothing more than to argue it before the nine justices?

Those were some of the questions raised at “Pro Bono Litigation in the United States Supreme Court: The Role of Supreme Court Specialists and Public Interest Organizations” on February 10. Sponsored by Georgetown Law’s Supreme Court Institute and moderated by Executive Director Irv Gornstein, the event offered the perspectives of nine experts who collectively have been involved with hundreds of matters before the Court.

“All other things being equal … it is much better to be represented by a highly skilled lawyer who has great experience in dealing with the Supreme Court,” said Visiting Professor Seth Waxman, the former U.S. solicitor general who has himself argued more than 60 cases before the Court. While some first timers are “just phenomenal” at oral argument and “unbelievably well prepared,” many are not, he noted.

Law school Supreme Court clinic directors and scholars at the event included Cornell’s John H. Blume, Stanford’s Jeffrey L. Fisher, Yale’s Lucas Guttentag, New York University’s Nancy Morawetz, and University of Missouri-Kansas City’s Sean O’Brien. The ACLU’s Steven R. Shapiro, Public Citizen’s Allison Zieve and Sidley Austin’s Jeffrey T. Green also served on the panel.

The experts looked at those rare cases where a win in the Supreme Court produces a loss for the client — the clients in U.S. v. Booker were “absolutely smashed by [the] sentencing judges” on remand, Green said — as well as cases where a Supreme Court “first-timer” was indeed the best lawyer to argue the case.

“He did an incredible job … and it was his one and only court argument ever,” said O’Brien, speaking of University of New Mexico Professor Jim Ellis, whose 2002 win in Atkins v. Virginia now prohibits the execution of persons with mental retardation. “He had never even been to traffic court.”

-- Ann W. Parks