Tony Mauro
American Lawyer Media
02-07-2002

When Clint Bolick asked the U.S. Supreme Court last September to grant him time to argue in favor of school vouchers, he had little reason to expect the request to be granted.

The Supreme Court rarely steps into rifts among counsel. Bolick, the longtime vice president of the Institute for Justice, was peeved that the main plaintiff, the state of Ohio, was sending an inexperienced assistant attorney general to argue on Feb. 20 in what could be the most important church-state case in decades. Bolick has worked on the voucher issue for years.

So it was a surprise when the Supreme Court on Jan. 22 issued an order adding 20 minutes to the usual hour-long allotment for Zelman, Superintendent of Public Instruction of Ohio v. Doris Simmons-Harris, No. 00-1751, and two related cases.

But the punchline is this: Bolick, who represents some of the parents who support the Cleveland voucher program at issue, still won't be arguing in the case. He had already withdrawn his motion, but other lawyers in the meantime had also sought extra time. So, instead, two other lawyers -- David Young for the pro-voucher side and former federal judge Marvin Frankel for the anti-voucher side -- will benefit from the extra time.

"We feel very comfortable with the allocation," says a chastened Bolick. "This combination is totally appropriate."

Robert Chanin, the lead lawyer for the anti-voucher forces, says, "It is ironic that every attorney who has been involved in this case from the beginning will now be arguing -- except for Bolick."

An important new voice at argument will be that of Solicitor General Theodore Olson, who has decided to personally present the Bush administration's support for the Ohio program.

The evolution of the argument lineup for the voucher cases is one of the more unusual Supreme Court lawyer tales of recent years. But it may also have consequences for how the case is shaped and framed before the Court.

For one thing, with Bolick out of the oral argument, his main written argument could also receive less attention from the Court.

Bolick argues that the Cleveland voucher program is the logical next step in fulfilling the constitutional mandate for equal education embodied in the 1954 case Brown v. Board of Education. Bolick cites Brown in the very first line of his argument as a "sacred promise" that the voucher program is keeping by "extending educational opportunities to children who need them desperately." Extensive advertising by pro-voucher groups has also cast the program as a major benefit for minorities.

Bolick's formulation infuriated civil rights groups and prompted the NAACP Legal Defense and Educational Fund and the NAACP to file an amicus brief in the case. For voucher proponents to argue that the program fulfills the goals of Brown, the brief says, is "an assertion we find so unlikely as to be nearly frivolous." Instead, the civil rights groups say, the program will sap funds from the public schools and accelerate the resegregation of public schools.

"If you don't have the law on your side, fall back on policy," says anti-voucher lawyer Chanin, general counsel at Washington, D.C.'s National Education Association, who has argued at the high court four times before. "The other side is overwhelmingly arguing education policy. We think the bottom line is the establishment clause."

Because the voucher money is applied overwhelmingly to parochial school tuition -- 95 percent of Cleveland voucher students go to religious schools -- Chanin will argue that even under the Court's more religion-friendly recent rulings, the Ohio program violates the First Amendment's establishment clause.

Because of the expansion of time, Chanin will be joined at the podium by former judge Frankel, now a partner at New York's Kramer Levin Naftalis & Frankel. Now 81, Frankel was a federal judge in New York's Southern District from 1965 to 1978.

Frankel has written extensively on church-state issues and has been a vigorous advocate against the voucher program since the Ohio litigation began five years ago, says Chanin. "I should be like him when I am 81," says Chanin.

Frankel, an assistant to the solicitor general 50 years ago, has argued more than 20 cases before the high court. He shrugs off any concerns about his age.

"Am I too young? Am I too old? I'm nearing the end of my career, and I am pleased to be be helpful," says Frankel. One of the justices he will face, John Paul Stevens, is also 81. "He's got a more important job than I do," says Frankel.

As currently planned, Chanin will argue for 30 minutes, and Frankel for 10. On the other side, Assistant Ohio Attorney General Judith French will argue for 20 minutes, with David Young and Olson each taking 10 minutes.

A partner in the Columbus, Ohio, office of Cleveland's Squire, Sanders & Dempsey, Young represents schools and parents who participate in and favor the voucher program. Young says he will be on hand especially to answer the Court's questions about the details and realities of the voucher program, such as the religious nature of the voucher schools.

During a recent visit to a Catholic school that receives voucher funds, Young says he asked a class of first-graders how many had been baptized as Catholics. Only two of the 28 said they had, underscoring Young's point that the voucher schools do not impose an unacceptable religious orthodoxy on students.

Young, who has argued two cases at the high court before, says he has been extremely impressed with Judith French during preparations for oral argument.

Young says he and French had participated in a moot court at the Ohio Supreme Court. "She was brilliant -- as prepared as anyone I've ever seen for an oral argument." Kirkland & Ellis partner and former Solicitor General Kenneth Starr has been helping with preparations. "Everyone is working very well together," Young says.

Young dismisses -- and disassociates himself from -- the "big squawk" over the decision by Ohio Attorney General Betty Montgomery to assign French to argue the case.

When he first objected to French, Bolick was quoted in Cleveland's Plain Dealer as calling her a "rookie" and "unacceptable." Montgomery responded angrily, calling Bolick "unprofessional" and claiming that he opposed French in part because "she's a girl." Said Montgomery: "If he wants to argue this case, then he should run and become the attorney general of Ohio. It is the state's case." French has argued once at the high court in 2000, in the clean-air case Whitman v. American Trucking Associations.

Bolick, who has not argued before the Supreme Court, was momentarily tongue-tied when asked recently about his tiff with the Ohio AG's office. "Our concern at the time was was having an advocate with experience on these issues," he said. "But whatever anxiety that was creating is long behind us."

SCALIA'S CHURCH

At first, it sounded like good news for death penalty abolitionists. At a Georgetown University talk on Feb. 4, Justice Antonin Scalia said that Catholic judges who adhere to the church's current anti-capital punishment teachings should resign.

But Scalia, a Catholic with a son who is a priest, was not about to announce his own resignation.

In spite of Pope John Paul II's strong opposition to capital punishment, Scalia preferred to align himself with what he said is "the 2,000-year-old tradition of the church approving capital punishment." According to an Associated Press account, Scalia also said, "I don't see why there's been a change."

As is his wont, Scalia did not allow recording devices at his Jesuit Heritage Week address, so it is hard to find any further elaboration on his death-penalty views.

But he appeared to be saying roughly what he said at a Chicago conference on Jan. 25, sponsored by the Pew Forum on Religion and Public Life. In that talk, he said that in death penalty cases -- more than in abortion or right to die cases -- judges, even appellate judges, are an integral part of the system that causes someone to die.

"My vote, when joined with at least four others, is in most cases the last step that permits an execution to proceed," Scalia said according to a transcript available on the Pew Forum Web site. "I could not take part in that process if I believed what was being done to be immoral."

In the federal system, Scalia said, the judge is somewhat more removed, because he or she "merely determines that the sentence pronounced by the trial court is in accordance with law." But even then, he said, the federal appellate judge would have a hard time reconciling his or her role with a belief that capital punishment was immoral.

But Scalia went on to make it clear that he does not think the death penalty is immoral, in spite of the current pope's pronouncements. Scalia asserted that pro- and anti-death penalty factions have co-existed within the Catholic church for centuries. The current predominance of anti-death penalty thinking, Scalia said disparagingly, is "the handiwork of Napoleon, Hegel, and Freud rather than of St. Thomas and St. Augustine."

Scalia's provocative comments are sure to trigger debate within judicial as well as religious circles. And they may, oddly enough, reverberate within the context of the Court's upcoming case Ring v. Arizona, No. 01-488, a post-Apprendi look at whether under the Constitution, the factors that result in a death sentence must be submitted to a jury or can be decided by a judge.

REHNQUIST'S MATH

Chief Justice William Rehnquist's annual report on the judiciary last month appears not to be sitting well with at least some judges who have read it.

In particular, some are unhappy with his assertion that the federal bench will be somehow diminished if the current trend toward appointing magistrate, bankruptcy and state judges to federal district and appeals courts continues.

"We have never had, and should not want, a judiciary composed only of those persons who are already in the public service," said Rehnquist in the report, extolling the virtues of a bench drawn from the ranks of private practitioners.

What irks some is that Rehnquist seemed to ignore the fact that most of the people appointed as bankruptcy, magistrate and state judges have already had extensive private practices, many rivaling or exceeding the 14 years Rehnquist spent as a private practitioner in Phoenix before he joined the government. In other words, whatever pragmatic sensibilities Rehnquist seems to think private practitioners bring to the bench are already part of the backgrounds of the lower court judges Rehnquist seems worried about.

Now, some questions are even being raised about the numerous examples Rehnquist cited as evidence for his proposition. The chief justice nostalgically catalogued some of the noted judges who came to the bench from extensive private practices.

One judge mentioned by Rehnquist was Alfred Murrah, the late judge from the 10th U.S. Circuit Court of Appeals for whom the ill-fated federal building in Oklahoma City was named. Murrah, Rehnquist said, "spent his entire career in private practice before becoming a judge."

True enough. But according to the federal judiciary's own authoritative Web site that offers capsule biographies of all federal judges through history (air.fjc.gov/history/judges_frm.html), Murrah's "entire career" in private practice lasted all of nine years -- from 1928 until 1937, when he was appointed to the district bench at age 33.

How extensive a private practice is that?

Rehnquist also invokes the names of the noted cousins Learned Hand and Augustus Hand, both of whom served on the 2nd Circuit and both of whom, according to Rehnquist, spent "virtually all the time between their graduation from law school and their appointment as federal judges in private practice." For Learned Hand, that period was 12 years, and for Augustus Hand, a more formidable 19 years.

Most of Rehnquist's other examples would fit anyone's definition of extensive private practice careers: Supreme Court Justice Louis Brandeis (38 years), and the pro-civil rights titans of the 5th Circuit: John Brown (23 years), Richard Rives (34), Elbert Tuttle (30), and John Minor Wisdom (28).

Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. His e-mail address is tmauro@legaltimes.com.