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- In Memoriam
- The Ds of Old
Casual Conversations: Arthur Fergenson and SCOTUS, January 17
After a November break following John Mathias’s presentation on representing defendants accused of a capital crime, Casual Conversations on Zoom picked back up again on December 20 with Tex Talmadge, assisted by Dudley Kay (on his birthday), leading a discussion on the Civil War. More than 20 classmates attended, as was the case also for John Mathias. In each session, some new faces appeared, a valuable aspect of the program allowing an expansion of active Class members beyond the “usual suspects.”
At the suggestion of Peter Schaeffer, I will be presenting at the next Casual Conversation. The date is Sunday, January 17, 2021, the time 3 pm Eastern (US). The subject will be the Supreme Court of the United States. After clerking (one of two) for a federal trial judge, Thomas P. Griesa, during his first year in office in downtown Manhattan (the United States District Court for the Southern District of New York), directly after graduating from law school, I spent a year (1973-74) as law clerk (one of four) to Warren E. Burger, Chief Justice of the United States. After leaving the clerkship, I joined a D.C. law firm and was soon brought in by my Yale Law colleague John Bolton as part of a small team that represented the plaintiffs (Gene McCarthy, Senator James Buckley, Stewart Mott, Congressman Bill Steiger, the New York Civil Liberties Union, the National Libertarian Party and a number of other organizations) in challenging the constitutionality of the post-Watergate amendments to the Federal Election Campaign Act. The challenge was ultimately heard by the Supreme Court in an all-day argument: Buckley v. Valeo. More than 30 years later, I had a chance to argue in front of the Supreme Court in J. McIntyre Machinery v. Nicastro, representing petitioner J. McIntyre Machinery. The subject was personal jurisdiction, a topic every law student studies starting with the seminal case of International Shoe, and one that had not been addressed by the Court for almost a quarter of a century.
The Court has changed in some ways in the almost 50 years since I clerked there, but in other ways is remarkably constant. During my clerkship the Court heard just under 160 cases; now it hears about 80. And with more law clerks. What does that mean and is it good for the Court and for the country? With so few cases accepted by the Court, how does a lawyer hope to get “cert” granted and get heard, especially if he or she is not part of “professional Supreme Court bar:” that has developed over the prior 20 or so years? How does the Court view its role, and why are so many people unaware of its function? (A hint: The Supreme Court is not a court of correction.) When I clerked the Bench was “cold,” asking few questions of the advocates; now the Bench is hot and lawyers are told not to expect to speak for more than two minutes, if that, before being interrupted. I didn’t get two minutes before Justice Scalia interrupted me. How do you prepare for oral argument? What was the worst advice I received from a moot court panel? I had five of them before argument. What is the role of the advocate before the Court? (A hint: Say “yes” or “No” or “I don’t know” and only then explain.) What Justice was so flummoxed that she called my opponent “Mr. Fergenson”? What were the different approaches adopted by the Justices? Why was Justice Breyer so sympathetic that I caught him winking at me while I was seated? How do you say “no” to a Justice who is plainly on your side? (A hint: Right for the wrong reason; enhances credibility.)
Along the way, I picked up some interesting stories, starting in my first clerkship. There I met Roy Cohn, acting as lawyer for G. David Schine (yes, that G. David Schine). There I learned that lawyers from big NY firms may not be the best choice to handle a case: trial lawyers versus “litigators.” I also became more acquainted than I could ever want to be with the crackpot ideas of Wilhelm Reich on the occasion of a copyright action. I also became familiar with the difficult tradeoffs (wrinkles versus discomfort) faced by manufacturers of one-piece pantyhose: a patent case involving a new and novel crotch piece invented by Madame Olga. US Attorney for the SDNY “Little Mike” Seymour, brother of Thaddeus and son of “Big Mike”, appeared before Judge Griesa. He reappeared in a luncheon session with the law clerks at the Supreme Court.
For those with long environmental and NYC memories, Judge Griesa stopped Westway from being built because of an inadequate Environmental Impact Statement. He was, more recently, the judge who enraged the entire country of Argentina in his rulings over its bond default.
Then the Supreme Court clerkship. What were the other clerks like? All the other law clerks, except those for Justice Douglas (whom Douglas picked without prior clerkship experience) had clerked for federal appellate judges. Why did the Chief Justice choose me? (I was the only one of his four clerks without military service.) What did I find so admirable about Justice White, one of whose law clerks I dealt with more than any other? Who are the most influential Justices during our lifetimes, and why do I choose them?
And, then, of course, is the story of how the Marshal came to build me a red-carpeted platform stage with steps, used by me during my clerkship year to perform at the Court’s Holiday Party, and then again by me at the clerks’ annual dinner just after Chief Justice Burger retired when I directed a playlet whose lines were taken from the debates on Article III at the Virginia Ratifying Convention.
I have worked for, performed in front of, or argued before three Chief Justices. That is my credential, still useful after 50 years and ten years. But I learned the most and had the best fun when clerking for Judge Griesa.
If you want to know more, join me on January 17. If you want to read the argument in J. McIntyre Machinery beforehand, here is the transcript. Hint: You really don’t have to. And the audio.
All those who want to participate please RSVP by close of business Friday, January 15, by emailing me.