Charles Rothfeld has argued 23 cases before the Supreme Court, and is part of Mayer Brown's impressive stable of top-tier appellate advocates. But he is also soft-spoken by nature, which may explain why, when he began arguing on Tuesday in Fitzgerald v. Barnstable School Committee, Justice Ruth Bader Ginsburg interrupted to ask him, "Could you raise the podium?" That simple request triggered a comedy of errors and, eventually, a rare apology from the chief justice.
If you've never been to the Court, what Ginsburg was asking Rothfeld to do was to use a crank on the side of the podium to raise it so that the microphone would be closer to his mouth. It's meant to accommodate unusually tall or short advocates, and Justice Antonin Scalia has joked that some pretentious lawyers use the crank just to show off that they know it's there. But Rothfeld is neither tall, short, nor pretentious -- he's 5'9" -- so his reply to Ginsburg was, "Actually, I have never used this before, so it's a learning experience for me, your honor." He cranked away nonetheless until Stevens told him, "That's enough! We can't see you!" Rothfeld (pictured at the right) quipped, "That may be an advantage, your honor," and he continued his argument.
That's when the banging began. The Court's sound system crackled and banged, as if someone was swatting one of the microphones -- but no one was. At one point Rothfeld raised his arms, as if he were a casino dealer showing everyone that he had nothing up his sleeves -- and that he wasn't hitting the mike. Rothfeld soldiered through, speaking somewhat haltingly at times because of the static. The justices seemed distracted, and the sound got so loud that it made it onto page 9 of the argument transcript as a parenthetical: "(Banging sound.)" Slate's Dahlia Lithwick remarked on it in her report on the argument. Rothfeld told the justices, "I hope I am not responsible for that." Roberts said he'd give Rothfeld an extra 10 seconds of argument time. The noise eventually stopped, and at the end of the rebuttal Roberts apologized to Rothfeld for the malfunction -- a unique event in itself.
So what's the after-action report? The Court's public information officer Kathy Arberg gave the official explanation late Wednesday. It turns out that when Rothfeld cranked up the podium, he inadvertently stretched a wire to one of the microphones on the podium to the near-breaking point. "The sound you heard was the sound of the microphone dying," said Arberg. The sound technician in the Court eventually cut off that microphone and switched to a back-up, ending the static. The system was repaired by the time arguments began on Wednesday.
Rothfeld was taking it all in stride on Wednesday, laughing that "you always look for something unusual at an argument. It was certainly a novelty." He said, "I raised the podium and all these weird explosions started going off." The episode did not rattle him, Rothfeld said, and what happened at the end of the argument seems to have surprised him as much as the microphone mishap itself: "It is the only time a chief justice has ever apologized to me."