A sterling reputation is the key driver of success for lawyers, agreed U.S. Supreme Court Justice Elena Kagan and U.S. Circuit Judges Sri Srinivasan (JD/MBA ’95, BA ’89) and Raymond Kethledge during a conversation at Stanford Law School on Wednesday.
The event, presented by the American Constitution Society and the Federalist Society, was held prior to this year’s Moot Court Board final arguments, at which the justice and judges presided as a simulated U.S. Supreme Court.
It was a homecoming for Srinivasan, who was a Moot Court finalist when he attended Stanford Law School. Professor Jeffrey Fisher, who has argued 26 times before the high court and is co-director of the Stanford Supreme Court Litigation Clinic, served as moderator.
Asked what made them first aspire to become a judge, all three referred to their experience as law clerks, the trusted relationships they made during their careers and unexpected opportunities that came along. Kethledge noted that he and Srinivasan became friends when they clerked together at the Supreme Court, and later helped one another when they were nominated as judges. Srinivasan mentioned also clerking alongside M. Elizabeth Magill, now dean of Stanford Law School, who welcomed everyone to the event.
“I’m feeling like the odd man out,” quipped Kagan. “It sounds like everyone has clerked together but me. But that’s OK because I get to be the Chief Justice.” Kagan was referring to her role as Chief Justice during the Moot Court competition. In her real-life role on Supreme Court, she is the junior justice who, by tradition, takes notes for the group and answers knocks on the door during closed sessions.
Recounting the unexpected twists in her career, Kagan said most law students plan too much and don’t take into account the times when “lightning strikes.” “The best thing is not to plan, but to work hard and be a good person. In the end that’s what gets you the opportunity,” she advised.
What makes a good law clerk
Asked about the most important traits in law clerks, Srinivasan said he looks for “what every supervisor looks for: someone who makes you do your job better.” All three emphasized the need for clerks who bring new insights to the cases they are handling and also are fun to be around, since judges and clerks spent a great deal of time working together.
Kagan said she looks for clerks who can stand up to her and offer counterarguments even when she seems to have made up her mind. Kethledge added that he looks for clerks who take ownership of their assignments, are professional and mature, and can write well because “for lawyers, that’s the medium through which we primarily express what we do.”
The panelists said they enjoy reading well-written briefs, and two said their favorite opinion was Supreme Court Justice Antonin Scalia’s lone dissent in Morrison v. Olson (1988), in which he argued that the Independent Counsel Act should be struck down because it was a wolf in wolf’s clothing. “It is one of the greatest dissents ever written and every year it gets better,” said Kagan.
Srinivasan noted that “writing a dissent is fun” because “you don’t have to write the dry stuff at the beginning. You get right to the punchy stuff.”
Writing a good brief
When Fisher asked them for tips on writing a good brief, Srinivasan said there are two ways to approach the task: by saying you should decide for me because you have to (and listing previous cases that support your argument) or because you want to. He advised the latter, saying he wants to read a brief that persuades him to adopt the arguer’s point of view.
It’s important, Srinivasan explained, to acknowledge the weaknesses in your case. Since he has become a judge with lots of cases to decide, he said he also appreciates a concise summary of what he needs to know about the case and three powerful reasons why he should support your view.
Kagan said the best briefs are ones that tell a story and make an overarching case for why the argument makes sense. Kethledge focused on the importance of good style and establishing credibility. “When a judge reads your brief, you should understand I am judging you,” he said.
The purpose of an oral argument, Srinivasan said, is not to try to control the room, but to figure out what the room wants to know. “My first job is to address whatever concern you have that is at the heart of the case,” he noted.
Yet another level of discourse takes place during arguments before the Supreme Court. “We talk to one another,” Kagan said. As the junior justice, she must wait during closed conferences until the other eight justices weigh in before she can present her views on a case. So, if she has a point to make and wants to make it “front and center, when my colleagues are thinking about the case,” she will do so while the case is being argued before the high court.
Kagan, Srinivasan and Kethledge later praised Stanford Law School finalists who argued at the Moot Court finals, noting that the two teams did so well that the simulated Supreme Court had a split decision. The case, Electronic Arts, Inc. v. Ryan Hart, concerned Ryan’s claim that a football quarterback avatar in EA’s video game franchise violated his right to privacy.
The winners of “Best Brief” and “Best Team Overall” were the respondents, Phillip Klimke and Matthaeus Weinhardt, representing Ryan. Michael Qian, arguing for the petitioner (EA) along with Daniel Kane, was selected as the “Best Oralist.” In real life, the two parties negotiated a settlement.
Elena Kagan was nominated to the U.S. Supreme Court by President Barack Obama and was confirmed by the U.S. Senate in 2009. Raymond Kethledge serves as a federal judge on the U.S. Court of Appeals for the Sixth Circuit, handling cases in Kentucky, Michigan, Ohio and Tennessee. Sri Srinivasan sits on the U.S. Court of Appeals for the District of Columbia Circuit.