"Massive Impasse" at the Supreme Court

It's the classic dilemma that faces parties who suddenly find themselves before the Supreme Court. Who should argue: the lawyer who has been with the case from the beginning, or a seasoned Supreme Court advocate who knows which buttons to push to win the hearts and votes of five justices? The Supreme Court created just such a dilemma yesterday in its handling of motions filed in Carcieri v. Kempthorne, set for argument on Nov. 3. As a result, says one of the lawyers involved, "we are at a massive impasse" over who will argue.

At issue in the case is whether the Interior Department has the authority to convert a parcel of land in Charlestown, Rhode Island into federal trust land for the benefit of the federally recognized Narragansett Indian Tribe. The Court granted review in February, and as the briefing developed over the summer, the Court was hit with three motions seeking divided argument time. Governor Donald Carcieri, who had hired former solicitor general Theodore Olson to represent the state, asked that the Court grant time for both Olson and Attorney General Patrick Lynch to argue on behalf of the state. That did not sit well with the town of Charlestown, whose assistant solicitor for Indian Affairs Joseph Larisa Jr. has been with the case for 10 years, from its inception and through the appeals process. Larisa filed motions seeking argument time for himself, and opposing the governor's motion, calling it "little more than a request for face time before this Court." On the other side of the case, meanwhile, the Indian tribe, represented by Thomas Goldstein of Akin Gump Strauss Hauer & Feld sought divided argument time with the solicitor general's office, which represents Interior Secretary Dirk Kempthorne.

On Monday, the Court said, in effect, "a pox on all your houses. Work it out." All the motions for divided argument were denied. Larisa immediately proposed a coin toss to decide whether he will argue on behalf of the town and the state, or whether it will be Olson or someone from the state attorney general's office instead. The state is resisting the idea of a coin toss, according to Larisa. Efforts to contact the attorney general's office have been unsuccessful.

In a phone interview today, Larisa said he is under pressure from the state to agree, without a coin toss, to Olson as the sole advocate at oral argument. "That's not going to happen; it's not going to happen at all." He adds, "It will be like a dog chasing its tail until we have the coin toss. We are at a massive impasse." In years past, the clerk of the Court would sometimes play the role of coin tosser to resolve such a dispute, but that has caused animosities in some instances, so Larisa says he was told, "the clerk won't do it for us."

Larisa adds, "I have the greatest respect for Ted Olson. If it were any other case, I would be head over heels for Ted." But, he said, "I know this case far better than Ted. He just came in at the merits stage. I've represented the governor, the attorney general and the town on this for 10 years."

Comments

“Olson has tried 50 cases before the high court, including the one that resolved the 2000 presidential election in George W. Bush’s favor. Carcieri hired Olson for $200,000 shortly after the high court agreed to hear the state’s appeal in February.”

How many of them do you think he was involved in form the beginning?

I wonder if Larisa has been to an argument in the Supreme Court.

I have seen many capable attorneys dismantled by the court.

Would you go with your family doctor for brain surgery because he has been caring for you longer?

I would opt for the professional.

[Another Rhode Island Lawyer]

Ego for whom? Olson or the attorney who has handled this case from the beginning? I'd rather have the attorney who knows the case and the law cold and who already argued it on appeal, than any new guy on the block, even one as qualified as Ted. The former can answer SCOTUS questions with more knowledge than the latter.

[Rhode Island Lawyer]

Ego, anyone?