Ted Olson

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 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.”

Jeffrey Rosen on a “Judicial Apocalypse” if McCain Elected

Matthew L.M. Fletcher

From the New Republic:

During every presidential campaign for the last two decades, liberals have predicted an apocalypse in the Supreme Court. In their dire visions, as many as four justices are always about to retire, meaning that a Republican victory would turn the court radically to the right and lead to the certain overturning of Roe v. Wade.

In each of the past three elections, of course, these hyperbolic predictions have turned out to be wrong. Since 1996, Roe has been supported by a comfortable 6-3 majority, and the Court, controlled by two relatively moderate swing justices, Sandra Day O’Connor and now Anthony Kennedy, has remained fairly centrist. All of this had led some Court-watchers, including me, to conclude that the stakes for the Court in most presidential elections are less dire than many liberals fear.

Not this time. This year, for the first time since the New Deal era, a single election really does have the power to transform the Court–at the very moment that voters, rightly concerned about the tanking economy and the war in Iraq, are looking the other way. Given the fact that the older justices are liberal rather than conservative–and that the oldest, John Paul Stevens, is 88–it’s hard to deny that nominations by John McCain would change the Court far more dramatically than those by Barack Obama. An Obama victory would maintain the current balance of the Court, while a McCain Court could create a solid conservative majority.

What’s at stake is not only Roe v. Wade, but issues directly tied to the current concerns of the public: among them, Congress’s power to regulate the economy as well as limits on the president’s power to act unilaterally in the war on terrorism. Although McCain claims to favor justices who will defer to the political branches, the most likely Republican nominees are hardly consistent advocates of judicial deference. Voters who are hoping McCain will nominate relatively moderate judicial mavericks should think again.

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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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Carcieri Impasse: Decided by Coin Toss?

Matthew L.M. Fletcher

From the Legal Times (H/t Indianz):

It’s the classic dilemma that faces parties who suddenly find themselves before the Supreme Court. Who should argue: the lawyer who has been with the case from the beginning, or a seasoned Supreme Court advocate who knows which buttons to push to win the hearts and votes of five justices?

The Supreme Court created just such a dilemma Monday in its handling of motions filed in Carcieri v. Kempthorne, set for argument on Nov. 3. As a result, says one of the lawyers involved, “we are at a massive impasse” over who will argue.

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