Dress rehearsal: The Moot Court Program at Georgetown Law Center's Supreme Court Institute.

• Date: 22 September 2005
• Author: Langlois, Gregory J.
• Published date: 22 September 2005
• Author: Langlois, Gregory J.

1. INTRODUCTION

   Arguing before the Supreme Court "is like the Indy 500--You are going flat-out from the moment the Chief Justice says 'Go.'" (1) The last time he argued before the Court, in Richardson v. McKnight, (2) David Vladeck says, "I felt like a ping-pong ball because I would be three words into answering somebody's question before another question came out. I thought my head was on a swivel." (3)

   Or think of it as a tennis match, says Carter Phillips, who has argued thirty-six cases before the Court. When a difficult shot comes their way, the pros not only return the ball but do so with some "top spin and serious quality." The same is true in answering rapid-fire questions from the nine members of the most intimidating court in the nation. "You're not just deflecting questions," Phillips says. "You're taking the questions and using them affirmatively to make your case. The great tennis players are the ones who do that, and the great Supreme Court lawyers are the ones who can do that." (4)

   But reaching the pinnacle of appellate advocacy--arguing before the Court--is not like reaching the top in the world of sports, because access to the Court is not limited to only the most gifted or experienced. In fact, most attorneys who appear before the Court are first-timers, lucky enough to have worked on cases in which the Court eventually granted certiorari. Whether they are rookies taking the podium through happenstance or seasoned advocates selected for their expertise, however, many lawyers choose to prepare for their arguments in the Supreme Court Moot Court Program at the Georgetown Law Center's Supreme Court Institute.

2. AN OVERVIEW OF THE PROGRAM

   The Institute's Moot Court Program was founded only in 1999, (5) yet two-thirds of all cases argued before the Court in at least one recent Term were mooted at the Institute. (6) The moots, which take place behind closed doors in a courtroom specially designed to recreate the atmosphere in the Supreme Court chamber, are designed to give advocates as realistic and insightful an experience as possible before they argue a few days later. The program is known for assembling top-notch panelists (including experienced Supreme Court litigators and federal appellate judges) to hear the advocates' arguments.

   The Program has a national reputation, (7) and because Georgetown moots only one side of a case, the parties sometimes race to get on the Institute's schedule immediately after the Court grants certiorari. They do so believing that the preparation available at the Institute is worth securing

    because of the high quality and skill of the judges that [the] Institute ... is able to attract to do the moot courts. These programs have made it easier for both first-timers and experienced advocates to do a more professional job before

   the Court. (8)

   As Vladeck points out, the Institute is able to call upon "the absolute top tier of the appellate bar in Washington, D.C.," putting "five or six of the best legal minds in the city" on the panel for each moot. (9)

   Professor Richard Lazarus, who co-directs the Institute along with professor Steve Goldblatt, assembles the right combination of these experts for each case: "I think of it as like putting together a small orchestra," he says. The idea, for the most part, is to bring together not a group of experts in the relevant area of substantive law, but instead five or six attorneys who can replicate how the Court thinks and pick apart an advocate's case. (10)

   Lawyers recognize the value in this approach. An attorney arguing Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, (11) which involved peer-to-peer file-sharing software, specifically asked for Georgetown professors with little technology background to serve on his moot panel. He knew that he wouldn't be arguing to a group of computer programmers at the Court, but to the Justices, who think about more than just the subject matter of the case before them. (12) They consider federalism issues, for example, or statutory construction. Moot panelists should consider them too, because these issues are part of what makes oral argument important: It provides Supreme Court advocates with "the first opportunity [they] have to figure out what's bothering the Court." (13) And the best moots will be staffed by panelists who are able to figure out ahead of time which issues those will be, enabling advocates to adjust their arguments accordingly. (14)

3. THE PROGRAM'S PHILOSOPHY

   1. An Even-Handed Approach

      Another feature sets the Program's moots apart and helps attract the best possible panelists: The Institute is nonpartisan. The Program focuses on public service--improving the quality of arguments before the Court--and not on promoting a particular cause. The Institute mooted Michael Newdow, an atheist who challenged the constitutionality of reciting the Pledge of Allegiance's "under God" line in public schools, before he argued his own case at the Court in a recent term. (15) Yet a few years before, it had mooted then-Texas Attorney General John Cornyn, who argued in favor of allowing student-led prayers at high school football games in Santa Fe Independent School District v. Doe. (16)

      The only factor determining which side of a case is mooted at the Institute is which side calls first. Lazarus highlights the resulting diversity in its caseload, noting that

       [i]n any one term we could be representing those who are challenging Nebraska's law restricting partial-birth abortions, and the next month we could moot an attorney

      representing Operation Rescue. That has made our program unique and very successful. (17)

      The Program also avoids choosing sides by selecting moot panelists "from every conceivable ideological stratum." (18) Mixing panels up with liberal, conservative, moderate, or other viewpoints is part of Lazarus's recipe for mimicking the makeup of the Court. (19)

      The advocates who prepare at the Institute benefit from that even-handed approach. If all the panelists agree with the advocate's position, he or she won't get a good sense of what to expect at the Court, says Phillips, who usually serves on one moot panel during each Court term. As he puts it,

       You do better if you don't try to stack the bench with true believers, [because] if you have true believers, they are just not going to stand up and ask the kinds of questions that the Justices are going to ask; you aren't going to have the

      measure of skepticism that you need unless you bring skeptics to the bench. (20)

      And Nina Pillard, who recently chose an Institute moot for her argument in a case that she knew would be "an uphill battle," specifically asked for one of the field's leading conservative thinkers to be on her moot panel. The exchanges with him helped her figure out what "would fly and what wouldn't fly with the Justices whose votes I needed," she says. (21)

      Panelists willingly work--without pay--to prepare lawyers who advocate issues they personally oppose because they know that they are helping to enhance the overall quality of oral argument at the Court. "We all regard it as a part of our mission to improve the quality of the advocacy for the benefit of the Court," Phillips says. (22)

   2. An Assurance of Confidentiality

      The Program's moots are strictly confidential. Anyone who sits in on a moot is forbidden to discuss what happens there. No one wants the advocates' arguments to leak out before argument day, but confidentiality also protects the political standing of panel members who present the side opposed to the advocate's position. In today's political climate, those inclined to partisanship might otherwise equate a panelist's serving on a moot panel with supporting the position being argued.

      "We like to give our judges a level of anonymity in this process that is consistent with the view that we are doing this for the benefit of the Court," says Goldblatt. Indeed, as he points out,

      [e]verybody knows that everybody is doing this for the good of the development of the law and for the Supreme Court practice, and everybody is happy to do it, but that requires that nobody even know what strategizing went on and who was there to do the moot for whom. (23)

      C. A Commitment to Efficiency

      The Supreme Court Institute Fellow, typically a student in the Law Center's evening program, carries out many of the day-to-day tasks involved in running the Program, and stays in close contact with the counsel of record. And, in close consultation with Professor Lazarus, he or she helps line up the necessary five to seven panelists for each moot. (24)

      Once the panel is set, the Fellow schedules the moot about a week before the actual argument. Any earlier than that, and "the person is not ready. And we want them ready," Lazarus says. Any later, and the panelists will pull their punches. "No one is going to give anyone an honest moot within a day or two of the argument," he says, "because at that point it's too late to actually pick apart someone's argument--they don't have enough time to put it back together again." (25) Thus, the Program's schedule strikes the right balance, allowing the advocate sufficient time in which to prepare the argument, and then sufficient time in which to adjust it...