Seeking the “Hail Mary” from Oral Argument by Taking a Maximalist Position
Appellate counsel may face situations where no reasonable answer exists to questions judges ask at oral argument. The problem might stem from bedrock adverse precedent. The dilemma could flow from a position taken by trial counsel that boxes in the appeal, such as waiver of an issue or a dispositive concession made in court. Or the predicament could result from a client’s insistence on a particular position no matter how farfetched or how it ties counsel’s hands. An obligation for zealous advocacy comes into conflict with reality.
A decade ago, the Supreme Court issued a sua sponte show cause order against a lawyer for filing a cert petition written by his non-lawyer German client. Many readers found the petition unintelligible, and some speculated that it was written in German without an understanding of what a petition must say and translated through an app without further editing. A bizarre footnote acknowledged the “significant contributions” of the client in writing the petition. A plea for mercy apparently worked. Although the Supreme Court did not discipline the lawyer, it issued a warning that lawyers must take responsibility for what they do in court and certainly not hand off their responsibilities to a client.
I recalled the incident, and what seemed like good advice, as I read reports of recent appearances before various courts by government lawyers defending the Trump administration’s new policies. More than defending some of these policies, they seem to have staked out positions designed to curry favor with their client, rather than with the courts. That’s why we see strange defenses of non-compliance by trying to indicate that only written orders, not oral ones, are binding. It is difficult to imagine facing a judge and attempting to make that argument – and the lawyer in the deportation case chose not to go there, admitting that he understood the court’s order.
Judges’ questions often cut to the heart of the matter, and the reports often show that this truism has occurred with regularity in these challenges. Last week, for example, the D.C. Circuit heard argument in a consolidated challenge to firings of board members at the National Labor Relations Board and the Merit Systems Protection Board. Both boards are independent agencies with legislated protections against political firings and bipartisan membership requirements. Through the firings, the Trump administration is challenging the authority of Congress to insulate the boards and their appointees from presidential control.
If the case reaches the Supreme Court, it will put Humphrey’s Executor v. United States, 295 U.S. 602 (1935), into the crosshairs. Humphrey’s Executor held that independent agencies (in that instance. the Federal Trade Commission) discharge duties of a legislative and judicial nature, so that the president lacks the constitutional power to remove its commissioners as he would an executive branch agency except for reasons Congress specified in the boards’ organic act. Many courtwatchers believe a majority of the current justices disagree with that type of limitation on executive power and will overturn Humphrey’s Executor.
When the case was argued in the DC Circuit last week, Judge Karen Henderson asked the Justice Department lawyer, “Could the President decide that he wasn’t going to appoint or allow to remain in office any female heads of agencies or any heads over 40 years old?” The DOJ lawyer attempted to parse the question, answering that, yes, that would be within the president’s removal powers even if there were “separate questions” about whether other constitutional provisions might block that action.
The answer struck me as ill-advised, and Judge Justin Walker suggested that the lawyer probably didn’t have to take on the burdens that such an answer posed. Practiced instinct suggests that you attempt to be on the same page as the judge, showing that of course the Constitution bars that type of discrimination before putting forward your defense of what happened in the case before the Court. That way, you align with the questioner in recognizing some outer perimeters for what your position is, while trying to make what you are defending defensible and different from the extreme case.
Credibility is incredibly important in addressing a court. A disingenuous answer, or one that attempts to spin the law in ways that a court can see through, does not help the lawyer move a court that is not already inclined to favor that position. Yet, as I thought about what happened, I realized that extreme positions sometimes work. Many experienced appellate lawyers were shocked, as I was, when Solicitor General-designate D. John Sauer told the D.C. Circuit in the presidential immunity case that our chief executive had the authority, immune from criminal prosecution (although not possible impeachment), to order Seal Team 6 to assassinate a political opponent in response to a judge’s question. Predictably, it resulted in a ruling from that court that there was no immunity against the charges the then-former president faced. But it seems that Sauer had his eyes on a higher court even as he appeared in the DC Circuit.
Justice Sotomayor raised the same question during oral argument in the Supreme Court. This time, Sauer was less categorical, saying it depended on the hypothetical, while still maintaining it “could” be an official act.
Still by taking a maximalist position in the DC Circuit, he kept alive the possibility that the Supreme Court would as well – and it did. As I said at the time, the Supreme Court essentially said there is immunity from issuing such an order to Seal Team 6, but not to the Proud Boys. As a matter of constitutional law that makes no sense to me.
Subsequent reporting in the N.Y. Times suggests that a majority of the Court, and the chief justice in particular, had already staked out a position on immunity before the case arrived there. The article suggests that this was an instance of a court already inclined to an argument regardless of what the advocate did.
That leaves us to ponder whether taking the maximalist position was a wise strategic choice. At a hearing on his nomination to be solicitor general, a senator posed the Seal Team 6 question again to see if Sauer would maintain the same position as the lawyer for the United States. This time, Sauer deflected. “The hypothetical you’ve offered, respectfully,” Sauer answered, “is so outlandish, I don’t know if I’m positioned to address it.” The movement he demonstrated by his three answers suggests that knowing who is judging your answers makes all the difference in how far you will, and should, go.