Vol. 22, No. 5,514 - The American Reporter - September 7, 2016



by Thomas S. Kerrigan
American Reporter Correspondent
Los Angeles, Calif.
February 28, 2001
First Person
AN A.R. CORRESPONDENT ARGUES BEFORE THE U.S. SUPREME COURT

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LOS ANGELES, Feb. 28, 2001 -- Bundled up in a scarf and overcoat as I walked along Capitol Hill early Monday morning from my hotel - Washington, D.C. is cold in February; there had been snow on the ground the day I arrived - I went over my notes once more in my mind and wondered whether all the weeks of study and research had prepared for mefor the appearance that was only a few hours away, an appearance that was becoming more and more momentous in my mind.

I was about to do something very few lawyers ever do: argue before the United States Supreme Court. The case was Arthur S. Lujan (California's Labor Commissioner) v. G&G Fire Sprinklers, Inc. At issue was the constitutionality of a key provision of the California Prevailing Wage law, a statute enacted 70 years earlier in the depths of the Great Depression to protect the livelihood of workers on public works projects.

The provision in question allows the state to withhold money, without prior notice or a hearing, from errant prime contractors who did not pay employees prevailing wages. The respondent, a subcontractor to whom the prime contractor had passed along the withholding, charged that this withholding provision violated the Due Process Clause of the Fourteenth Amendment. At risk was not only the California law but similar statutes in New York, Illinois, Michigan, and Pennsylvania and other states.

This was to be the final battle in a campaign that had started in 1995 in the United States District Court in Los Angeles, when Federal Judge Manuel Real had dismantled the entire statutory scheme, finding it unconstitutional.

On appeal, I had made three separate appearances (resulting in three separate decisions) in the Court of Appeals for the Ninth Circuit during the next five years. While I had been able to overcome some of the drastic effects of the decision, I was still on the losing side.

This morning, in the highest court in the nation, would be the state's chance to save the day. My case was the second one on the Court's calendar that morning and I would be the first attorney in the case to argue.

I entered the Maryland Avenue side entrance of the Supreme Court Building and went to the cafeteria on the lower floor. I had gone early to eat breakfast there, a tradition on the day one had oral argument.

Though the Corinthian white marble structure with its many portraits of former justices is not an old one by Washington standards, having been built in 1932, it is heavy with such traditions.

At nine I reported to the Lawyers' Lounge, where attorneys having cases on calendar are given some last-minute reminders of a number of do's and don'ts that had already been drummed into my head.

You address the Chief Justice as "Mr. Chief Justice." You don't use "Mr." in referring to any of the other justices, but simply call them "Justice ------" or "Your Honor." You must begin your argument with the words "Mr. Chief Justice and may it please the Court."

When the white light on the podium goes on, you have five minutes left. When the red light goes on, you must instantly stop talking, even if in mid-sentence (unless you are responding to a question from one of the Justices). Failure to conform to these rules is not tolerated. On the other hand, there is a sense that once you have finally become familiar with these rules, you are a member of a club.

It was only a few minutes before ten when I left the Lawyers' Lounge to take my place at the argument table, a bench immediately behind the counsel table, carefully avoiding the eyes of reporters, the courtroomartist from CNN, and the family and friends who were present, so as not to be distracted.

Counsel have the option of entering the courtroom at the beginning of the calendar or simply waiting until just before their case is called.

I wanted to listen to the arguments in the first case, involving a rather technical controversy regarding the proper standard for appellate review of punitive damages awards, to get a feel for the climate in the room. A few minutes later I heard the familiar "Hear Ye, Hear Ye, Hear Ye" and saw the nine Justices enter from behind the red velvet curtain.

After some brief motions for admission to the Court, counsel for the petitioner in the first case stood up and addressed the Justices. Counsel are each given 30 minutes to argue their cases (though in my case I had ceded 10 minutes of argument to the Solicitor General, who was appearing on the state's behalf as an amicus curiae).

Both the arguments and the responses of the justices in this instance were restrained.

The most notable occurrence involved counsel for one of the parties mistakenly identifying Justice Souter as "Justice Bryer," causing a buzz along the seats reserved for members of the Supreme Court Bar.

It was the one gaffe every lawyer appearing before the Court was most concerned about, especially after the Florida lawyer in Gore v. Bush had made the mistake of calling one of them "Justice Brennan;" Justice Brennan had died a year before. I decided to simply refer to the Justices as "Your Honor" to avoid any problems.

As I approached the podium with the stack of briefs that had been filed in the case (the two briefs I had filed, Respondent's Brief, the briefs of the other two amici curiae that had been filed in support of our position, the AFL-CIO, and the League of California Cities), I was startled by how low the microphones were.

I am 6'4" in height and realized that to speak directly into the microphone would require me to bend over, making it difficult to maintain eye contact with the justices. There was a crank on the side of the podium, but, as the clerk had warned might be the case, it didn't function.

I vacillated for the brief moment I had and then decided to leans lightly, while keeping my head up and my eyes on the justices. "Mr. Chief Justice, and may it please the Court," I said.

Appellate lawyers do not get to make speeches in the Supreme Court. Ordinarily, they begin with a few comments and then spend the rest of their time responding to the questions of the justices.

I knew I had approximately thirty seconds to a minute to make my opening remarks before I would be interrupted.

This becomes the real test at oral argument before the Court, to think on your feet well enough to rapidly consider the questions posed and to answer them persuasively and promptly. I was able to give a brief history of the case and described the constitutional issue involved before Justice Ruth Bader-Ginsburg asked me a key question regarding the practice of prime contractors withholding funds from one of the subcontractors.

Why, she asked in so many words, would a prime contractor not always pass on the state's withholding of funds to the subcontractor? I had spent a lot of time looking into this and asking people in the industry the same question. I was able to give a direct aswer which seemed to at least temporarily satisfy her.

Questions followed in rapid succession from Justice David Souter, Sandra Day O'Connor, the Chief Justice and Justice John Paul Stevens. Again, I had the information sought or was able to refer them to a specific place in the record. Justice Antonin Scalia was more of a problem, asking difficult questions that went to the underpinnings of ourposition; in a couple of instances, he reacted with undisguised scorn atmy responses.

I knew that I was not going to be able to convince him, that the best I could do was to confidently argue my point and not get beaten down or lose my aplomb.

When the white light came on, I was amazed. I thought that only a few minutes had passed. When I returned to argue my five minutes on rebuttal, it seemed like only seconds had elapsed. There were lots of things I had wanted to say but could not because the questions were taking so much time and didn't permit me to launch into other subjects.

I had wanted, for instance, to stick in the phrase, "The Due Process Clause does not convert contractual sow's ears into constitutional silk purses," meaning that every property right is not covered by the Fourteenth Amendment. But the occasion didn't arise for this and other comments I had planned to make.

Fortunately, most of these points had been covered comprehensively, I thought, in the two briefs I had filed in the case. A good brief is half the battle. Often the Court has been influenced sufficiently by the briefs that they are leaning in one direction or theother before oral argument even occurs. Also, points made for the first time during oral argument are likely to get overlooked when it comes time for the assigned justice to write the majority opinion.

After Solicitor General Jeffrey Lamken had made his brief comments, running into some of the same problems with Justice Scalia, my opponent - an attorney named Stephen Seidman, from Los Angeles - rose and began his argument.

As he struggled with questions from Justices Breyer and Souter, I made a note to myself to offer answers to those same questions when I returned for rebuttal, a well-known tactic that has often worked well for me. I also noted answers that could be contradicted when I got my chance to stand up again.

An unanticipated question was asked of me by Justice Ginsburg toward the close of oral argument. Unsatisfied by my initial response, Justice Scalia weighed in with a more specific inquiry along the same lines. I could feel the pressure of the moment and hurriedly put together a response even before he had finished his question.

Awkward pauses at such stages can be damaging. I was about to launch into an answer still forming itself at the same moment I started to speak. I gave a citation to a pertinent California case.

Then the red light went on.

Counsel are repeatedly instructed to cease talking, even if in mid-sentence, when that happens unless in the midst of answering a question. I looked at the Justices and they looked back at me.

"Submitted," I said.

"Thank you, Mr. Kerrigan," the Chief Justice responded.

The Justices rose from their seats. It was a little after noon. The work of five years had come to an end.

I felt all the frustrations of having so many things to say, and not having been able to express all of them in the time alloted. But before I could reflect on the experience or draw any conclusions about my relative success or failure, colleagues, family and friends were clamoring around me with congratulations and optimistic predictions of success.

Had they seen or heard the same proceedings I had? Who, after all, is better qualified to make the assessment, he who is directly involved or he who watches from a distance?

There was relief at the end. I was finished (at least for now)with a case that has taken up so much of my life since 1995. I also came away with a new respect for the Justices.

They seemed to me, more tha never, to be a group of conscientious men and women searching for the answers to difficult legal problems. Their work was not easy.

And I had a new regard and awe for the institution of the Supreme Court, having for an hour been part of the process.

In addition to being counsel for the California Dept. of Labor, Tom Kerrigan is a distinguished American poet.

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