When Brett Kavanaugh Got Roughed Up By the Supreme Court
If confirmed, U.S. Supreme Court nominee
Brett Kavanaugh will follow in the footsteps of the late justices
William Rehnquist and
Antonin Scalia—not just doctrinally, but in having argued before the high court only once in their lives.
Yes, Kavanaugh argued in one case—and lost—in 1998, in Swidler & Berlin v. United States. It was a high profile case of special interest to lawyers. At issue was whether the lawyer-client privilege survives after the client dies.
The client was Vince Foster, the former Clinton administration aide who would later commit suicide. As part of the Travelgate investigation in 1993, Independent Counsel
Kenneth Starr subpoenaed the notes of Foster’s lawyer,
Swidler & Berlinpartner
James Hamilton, who had talked to Foster shortly before his death. Hamilton argued to the court that the privilege should keep the notes private.
Kavanaugh, who was a deputy to Starr, had just returned to
Kirkland & Ellis when he argued before the court in favor of the subpoena. He did not start off well.
Kavanaugh told the court that shielding “a critical category of evidence” would lead to “extreme injustice.” He added, “Not our words, the words of Mueller & Kirkpatrick.”
Chief Justice William Rehnquist interjected, “Who are Mueller & Kirkpatrick?”
Kavanaugh quickly replied, “They are two commentators on the law of evidence.”
“Huh,” said Rehnquist, prompting laughter in the courtroom.
Justice
John Paul Stevens chimed in with a chuckle, “They're not quite as well-known as Professor Wigmore and the like.”
Sounding nonplussed, Kavanaugh continued making his point without comment. Later, Kavanaugh referred to the exchange, with an appropriate measure of humility. “Well, with hesitation at raising their names again, Mueller & Kirkpatrick do suggest that…”
By the way, that’s not the Mueller you might be thinking of.
Christopher Mueller is a professor at University of Colorado Law School and co-author of several
Evidence treatises. (He told us Tuesday he is not related to special counsel
Robert Mueller.)
Kavanaugh got roughed up in other exchanges with the justices that day. Both Rehnquist and Scalia did not seem to have enjoyed their experience either:
➤➤ Rehnquist, then a Justice Department attorney, argued before the court in January, 1971 in a Selective Service case Ehlert v. United States. He won for the government, but he did not particularly enjoy the experience. “My adrenalin was high, and I sat like a greyhound in the slip waiting for my chance to begin,” he wrote in his 1987 book The Supreme Court. “I was drenched with sweat.”
➤➤ Scalia, also a young Justice Department lawyer at the time, argued in 1976 in Alfred Dunhill of London, Inc. v. Cuba, a dispute over Cuban cigars. His side also won, but he too seemed unsatisfied by the experience. "I had two questions my whole time. It was awful,” he told
legal writing expert Bryan Garner in 2008. “Face to face, you know, I'm just saying what I've already said [in the brief], I'm like, 'C'mon, guys, give me a hand here! ... How can I help you? What are you concerned about?'"
Lesson learned: The best way to avoid arguing before the Supreme Court is to become a justice. That way, you get to ask the questions, not answer them.
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