Drew S. Days III
Drew S. Days III
Kenneth W. Starr
Kenneth W. Starr
Theodore B. Olson
Theodore B. Olson

Nowadays, U.S. Solicitor General Donald B. Verrilli Jr. said, oral argument before the Supreme Court “gets a little bit like a game show.”

That’s because the justices have to push a button to activate a microphone when they want to ask a question.

“You’ll see them all sitting forward like this,” he said, demonstrating the pose, “because they’re waiting for a break in the action so they can jam the button.”

Verrilli was joined Sunday by three of his predecessors for a panel discussion on practicing before the Supreme Court.

The program was held at the Hyatt Regency Chicago during the American Bar Association Annual Meeting. The event, which began last week, ends Tuesday.

Acting as moderator was Lincoln Caplan, a visiting lecturer at Yale Law School.

The solicitor general is the federal government’s representative before the Supreme Court. The Office of the Solicitor General is part of U.S. Justice Department.

Theodore B. Olson, who served under President George W. Bush, said there were two occasions when he did not even have the opportunity to say, “Mr. Chief Justice, may it please the court.”

Both times, then-chief justice William H. Rehnquist said, “Before you begin, I have a question for you,” Olson recalled.

Kenneth W. Starr, who served under President George H.W. Bush, agreed with the other panel members that the modern Supreme Court is “a very, very active bench.”

During oral argument in one case, Starr said, the justices interrupted him with 63 questions in the course of 30 minutes.

That was in sharp contrast to William Howard Taft’s first appearance before the court following his appointment as solicitor general in 1890.

In a letter to his father, Starr said, Taft complained that the justices ate, chatted among themselves and passed notes to one another while he was speaking.

“It is really fast-moving now,” Starr said.

He said advocates have to be quick on their feet — but not too quick.

“Don’t interrupt the justices,” he said. “That’s the unpardonable sin.”

And lawyers have to be efficient, said Drew S. Days III, who served under President Bill Clinton.

In an earlier era, he said, advocates sometimes were given the opportunity to return the day after oral argument to raise additional points.

With the continuing “compression” of time limits, lawyers these days have to be choosier about what to include in their presentations, Days said.

The panel members had different reactions to being asked to interview for the position of solicitor general.

“I thought about that for a nanosecond and said, ‘Of course,’” Verrilli said.

Starr, however, turned down the offer twice.

He had been serving as a judge on the U.S. Court of Appeals for the District of Columbia Circuit for a little more than five years, Starr said, and had just gotten his “sea legs.”

But he succumbed to the argument that the invitation to be solicitor general was a call to service.

He was in his chambers when he received that last entreaty from the administration, Starr said.

“I went into my little washroom and cried like a baby,” he said. “Because I really loved the court.”

However, Starr said, he soon discovered that Thurgood Marshall — who served as solicitor general under President Lyndon B. Johnson before joining the Supreme Court — was right about the position.

“It is the best legal job in the world,” Starr said.

Verrilli said preparing and arguing cases before the Supreme Court “is the tip of the iceberg” when it comes to his duties as solicitor general.

He edits every brief his office files with the high court, Verrilli said.

That’s a time-consuming task, he said, because the United States is a party in 20-some cases each term and files friend-of-the-court briefs in an additional 30 to 35 others.

The solicitor general also approves any appeal the federal government files after losing a case in trial court.

“And you know, we lose like 2,000 cases a year, so that’s a lot,” Verrilli said.

But what really takes a lot of time, he said, is determining the United States’ stand on legal issues.

“You might think that an administration would have a relatively unified view about what the government’s position ought to be on any given matter.” Verrilli said, “But it’s just not that way at all.”

He said institutional and structural differences are built into the executive branch.

For example, the U.S. State Department favors opening American courts to claims of human rights violations, even if the plaintiff is a foreign national and the alleged violation occurred on foreign soil.

On the other hand, the U.S. Defense Department and intelligence community tend to oppose such action for fear American citizens will be hauled into foreign courts, Verrilli said.

“At the end of the day, the SG’s got to make a decision about what the position of the United States is going to be,” he said. “And there’s going to be winners and losers in that process in the executive branch.”