oral argument

Coverage of the Carcieri Argument

Matthew L.M. Fletcher

From Law.com (thanks to Mike McBride)

Compared to the drama surrounding which lawyer would argue before the Supreme Court Monday in the case of Carcieri v. Kempthorne, the actual argument came as something of an anticlimax.

As reported by Legal Times in recent weeks, Rhode Island Gov. Donald Carcieri had hired former solicitor general Theodore Olson for a reported $200,000 to argue for the state in the Indian land dispute. But Joseph Larisa, a private lawyer for the town of Charlestown, R.I., where the land in question sits, refused to turn over the reins to Olson, asserting that his handling of the case for the last 10 years made him the most qualified to argue before the justices.

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Commentary on the Carcieri Oral Argument — UPDATED

Matthew L.M. Fletcher4 Comments

I think it’s safe to say after today’s oral argument in Carcieri v. Kempthorne that the chances the Supreme Court will affirm the First Circuit’s decision are pretty small. Of course, what happens at oral argument doesn’t guarantee any outcomes, and any reading of the cold transcript can create misconceptions. But a few comments (I’ve added more material at the end):

First, Ted Olson had the much easier argument to make and he exploited that advantage mercilessly. He had the benefit of the plain language (“now” meaning 1934, when 25 U.S.C. 465 was enacted). He had the benefit of 15 statutes that purported to extend the benefits of Section 465 to newly recognized tribes, a true sound bite if there ever was one. He had the benefit of the legislative colloquy (as it was called in oral argument) between Sen. Wheeler and Indian Affairs Commissioner Collier which seemed to support his view. He had the benefit of a 1978 decision (U.S. v. John) that assumed without deciding that his interpretation was correct. And he had perhaps the most friendly audience to his client, a state government, in the history of the U.S. Supreme Court — the Roberts Court.

The government’s attorney, Deanne Maynard, had a difficult time getting past all of these superficial issues. On the face of it, each argument above is a winner, but there was a reason why the First Circuit sitting en banc unanimously (6-0) rejected each of these arguments below. Unfortunately for the government and the Tribe, the winning arguments for the respondents are based in history, statutory construction and nuance, and other characteristics difficult to parse out when facing a barrage of questions from eight Justices (no questions or commentary from Justice Thomas, as usual). Even when Justice Stevens attempted to explain the statutory construction argument in regards to the definition of “Indian tribe” he got bogged down and never could finish his point.

And, early in her argument, the Chief Justice got Ms. Maynard to concede that the government was asking the Court (“ironically”) to read the statute as if “now under federal jurisdiction” was not actually there.

In short, Mr. Olson appeared to out-argue Ms. Maynard.

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Carcieri v. Kempthorne Oral Argument Transcript

Matthew L.M. Fletcher

Available here.

How the Carcieri Oral Argument Drama Unfolded

Matthew L.M. Fletcher1 Comment

Interesting, but not terribly surprising, that the Governor and the R.I. Attorney General would have forfeited oral argument rather than allow Joe Larisa to make the argument; or at least, that Larisa believed them. As Justice Thomas said recently, nine times out of ten, oral argument doesn’t change his mind, but he did say a party can lose a case at oral argument. And since the Supreme Court granted cert on Rhode Island’s petitions, it is their case to lose at this point. So forfeiting oral argument might have made sense, strategically. Who knows….

From ProJo:

***The drama began at 11 a.m. when a court clerk placed a conference call to Larisa, assistant solicitor for Indian affairs for Charlestown; Theodore B. Olson, a prominent Washington, D.C., lawyer, and representatives of Governor Carcieri and Attorney General Patrick C. Lynch. The clerk said that the justices of the nation’s highest court had refused Larisa’s last-minute emergency motion to help resolve the dispute. The parties would have to decide for themselves whether Larisa or Olson –– the choice of the governor and the attorney general –– got to argue the case.

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Carcieri Drama Over — Ted Olson to Argue

Matthew L.M. Fletcher

From ABA News (H/T JP) (SCOTUSblog coverage):

A Rhode Island lawyer has given up his battle to argue an Indian land case before the U.S. Supreme Court.

Lawyer Joseph Larisa Jr. had tussled with Rhode Island officials over which lawyer should represent them in the case. Today he agreed to let former solicitor general Theodore Olson handle the arguments after an unusual phone call today by Supreme Court clerk William Suter, SCOTUSblog reports. “He said the court gave us one hour to decide, or all argument time would be forfeited,” Larisa told the blog. Larisa will be seated as co-counsel when the case is argued Monday.

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The Drama in Carcieri Continues

Matthew L.M. Fletcher

From ProJo:

The flights are booked, hotel rooms reserved, but who these Rhode Island visitors will see Monday in the leading role before the U.S. Supreme Court remains unknown.

The court will be hearing oral arguments in a landmark case that could resolve, once and for all, who controls the 31 acres of land in Charlestown owned by the Narragansett Indian tribe.

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Carcieri Oral Argument Impasse Continues….

Matthew L.M. Fletcher

From SCOTUSblog (h/t Indianz):

At 1 p.m. next Monday, an attorney will step to the Supreme Court’s podium to open the argument in a case pitting the rights of states against the rights of Indian tribes and the power of the federal government.  But, with that argument edging ever closer, the identity of that advocate is still not settled.

The Supreme Court finds itself in the midst of what one lawyer involved calls “this impasse” over who gets to speak first, or at all, in the first half of the argument in Carcieri v. Kempthorne (07-526).  Court aides have tried repeatedly to get the three parties lined up on that side of the case to settle on one attorney, but so far that effort has failed.

***

Larisa on Monday sought to draw the Court back into the fray, filing a motion for reconsideration of the previous denial of divided argument, and seeking a split of 50-50 between himself and Olson.  If, however, the Court is unwilliing to do that, Larisa proposed a coin-toss, winner-take-all.  Larisa’s motion is here.

Olson, on behalf of the governor, responded on Monday with a letter to the Court saying that the governor and the attorney general do not support an equal division of the time, and do not support a coin toss.  But, Olson said, the governor would be willing to have Olson take 20 minutes and Larisa 10.  If some other means is necessary to resolve the impasse, Olson said, neither the governor nor the attorney general supports a coin toss, and the attorney general would not support any “random draw” to pick someone other than a state lawyer to speak for the state.  Their suggestion for an alternative: a majority vote of the three (which, it is obvious, would wind up with Olson getting the nod on the votes of the governor and attorney general).  Olson suggested that the Court then “give effect” to that majority by designating Olson to argue alone. The Olson letter is here.

Assistant Attorney General Neil F.X. Kelly, in a letter to the Court on Monday, opposed all of Larisa’s proposals, and indicated that Attorney General Lynch would agree at most to ”a democratic vote.”  But, Kelly said in closing, the office would approach the town again to see if the impasse could be settled.  Kelly’s letter is here.

If the impasse lingers, the Court could take up Larisa’s motion, perhaps at Friday’s Conference.  By the end of that day, there likely would be some order, giving the winner(s) the weekend for final preparation.

Carcieri Argument Still Up in the Air

Matthew L.M. Fletcher

From the Blog of the Legal Times:

UPDATE: Gibson, Dunn & Crutcher partner Theodore Olson, responding to the emergency motion for divided argument filed by Joseph Larisa (see below) wrote to the Court late Monday that his client Gov. Carcieri “does not object” to a 20-10 minute division of the half hour argument time, with Olson arguing for 20 minutes and handling rebuttal and Larisa arguing for 10 minutes. Larisa says Charlestown is agreeable to the arrangement suggested by Olson. But in a separate letter late Monday, Assistant Rhode Island Attorney General Neil Kelly told the Court that Attorney General Patrick Lynch still opposes divided argument and will undertake “a renewed effort to select one counsel.” Kelly’s letter refers to Larisa’s client, the town of Charlestown, as a “small town in Rhode Island” that has frustrated efforts to give the state one voice before the Court.

Exactly one week before oral argument in the case of Carcieri v. Kempthorne, agreement over which lawyer will argue for the appellants before the Supreme Court still seems far away — so far, in fact that the Supreme Court itself may decide.

Rhode Island Gov. Donald Carcieri and state Attorney General Patrick Lynch want former solicitor general Theodore Olson, a veteran of 50 arguments before the Court, to argue in the Indian land trust case, but the town of Charlestown, where the disputed land sits, wants its Indian affairs lawyer Joseph Larisa, a novice at the Court but the lawyer who has argued the case in courts below, to handle it. After the Court rejected motions for divided argument and both sides refused to back down, both Olson and Larisa filed conflicting forms with the Court stating they alone would argue for the full half-hour. The Court clerk’s office sternly told the two to resolve the issue and submit one name by this Thursday.

Today Larisa filed a letter with the Court telling it that because he understands “there will be no change whatsoever in the position of the governor and the attorney general,” there appears to be no way the two sides can comply with the request to submit a single name by Thursday. As a result, Larisa has filed an emergency motion to reconsider the possibility of divided argument, for placement on the agenda of the Court’s private conference this Friday. Minutes ago, Court officials confirmed Larisa’s motion will be placed before the Court on Friday.

“It’s most unfortunate that we have been unable to pick a name,” says Larisa, who adds that “the town of Charlestown does not want to wave the white flag.” With the state unwilling to budge, Larisa saw no other choice but to ask the Court to decide.

“Unless they want the two of us jockeying for position on Nov. 3, someone has to resolve this,” says Larisa, who is reconciled to the fact that he won’t know until one business day before the Court session whether or not he will be arguing. Referring to the original authors of the book Supreme Court Practice, the 1,427-page tome on the rules and customs of practicing before the high court, Larisa adds, “They’re going to have to write a new paragraph in Stern and Gressman for this case.”

Carcieri Oral Argument Fight Not Over Yet

Matthew L.M. Fletcher

From Indianz:

Officials in Rhode Island are still fighting over who will argue Carcieri v. Kempthorne on November 3.

Laurence Tribe a leading U.S. Supreme Court practitioner, said Theodore B. Olson, a former Bush administration attorney, should represent the state. He said only “childish and selfish” reasons would prevent Olson from arguing the case. “The obvious solution is for Ted Olson to argue the case. He’s much more experienced … But if they find that unpalatable, they should flip a coin and grow up,” Tribe told The Providence Journal.

Joseph Larisa Jr., the assistant solicitor for Indian Affairs for the town of Charlestown, still believes he should present the case but he is willing to do a coin toss. Gov. Donald Carcieri (R) Attorney General Patrick Lynch only want Olson to argue. At issue is whether the Narragansett Tribe can acquire land under the Indian Reorganization Act even though the tribe wasn’t recognized at the time of the act’s passage in 1934. If the tribe can acquire new lands, the state claims jurisdiction over them.

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Rhode Island Divided over Petitioner Argument Time

Matthew L.M. Fletcher

from ProJo (H/T SCOTUSBlog):

The fate of 31 acres in Charlestown owned by the Narragansett Indian tribe will be argued before the U.S. Supreme Court in November, but first a nasty local dispute must be resolved: Who should represent Rhode Island’s interests before the nation’s highest court?

At play is whether the privilege should go to the attorney general’s office, a high-powered lawyer hired by Governor Carcieri, Charlestown’s assistant solicitor on Indian affairs or a combination therein?

The Supreme Court is scheduled to hear arguments Nov. 3 on the state’s challenge of a federal appeals court ruling that the U.S. Department of Interior can hold the land in trust for the Narragansetts.

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