November 3, 2006

"Ms. Forsman, can I ask you a personal question? Were you a moot court finalist?"

That's something Justice Stevens actually said during oral argument yesterday. When the lawyer, Franny Forsman, said "no," he commented [referring to a moot court he attended at her law school a while back]: "It was an awfully good moot court."

Presumably, that means: You do realize that you are bound to lose, don't you?

16 comments:

David Walser said...

Alternative meaning: Any moot court without you is a good moot court.

David said...

Nice try Forsman!

Slim999 said...

IANAL,

So, I really don't understand how this case even got cert ... unless of course you believe that just because we might have to retry some folks we should allow past injustices to just sit there - and only offer complete justice to new defendants.

Why would the Supreme Court even entertain an argument that boils down to "this might cause us to have to revisit some cases."

Justice has either been denied, or not ... irrespective of the problems such injustices cause the courts and prosecutors.

Right?

Does it really matter that some people, who didn't get to face their accusers, would have their convictions overturned? Even if that's a lot of people?

Vee said...

You put an awfully smug spin on Steven's moot court question. It sounds like ordinary lawyer-judge (justice) banter to me. And did you read the end of the article you linked? Stevens was apparently referring to the Notre Dame Law School's moot court program, not Forsman's argument.

Of course Forsman was almost certainly going to lose. That doesn't mean she wasn't right, or that Stevens was berating her.

tjl said...

"So, I really don't understand how this case even got cert."

There is a presumption that any criminal case from the 9th circuit will be granted cert so the Supreme Court can reverse it.

"Why would the Supreme Court even entertain an argument that boils down to "this might cause us to have to revisit some cases."

Because this issue comes up every time the SCt announces a new criminal-law rule. The finality of judgments is a legitimate matter for the Court to take into consideration. The number of cases affected is not small, and the criminal justice system is overburdened as it is.

The Court draws the line by finding that some of its decisions affect substantive rights, while others are procedural in nature. The procedural decisions aren't retroactive. The distinction is somewhat arbitrary, and won't satisfy Slim999's objections, but they can't make everything retroactive, no matter how good Forsman was in moot court.

Simon said...

tjl said...
"There is a presumption that any criminal case from the 9th circuit will be granted cert so the Supreme Court can reverse it."

The so-called "Writ of Reinhardt".

At SCOTUSblog, Lyle Denison interpreted Stevens' comment as being high praise. I'll trust Lyle's characterization over that of the Indidiated Press' any day of the week.

Anonymous said...

A long time ago, when still young enough to be outraged about every damn thing, I contested a speeding ticket. I presented charts and graphs and exhibit A and so forth. The policeman was standing in one speed zone and pointing his gun into the preceding speed zone, after all.

After the dog was dead and the pony was tired... GUILTY!

The bailiff leads you to another room to pay the fine. He chuckled a little under his breath, and said:

"Nice try kid, but between you and me, that's The Guilty Room.

But I really think the judge got a kick out of you."

So I have that going for me.

Zeb Quinn said...

"We have to look at the rule in the whole universe of cases, not just your case. It seems to me that was the problem you had in arguing in this area, and maybe you can suggest some way out. I don't see it," Kennedy said.

Her losing may be preordained, but near as I can tell she never made her best argument. Decorum, whatever. Kennedy opened the door for her. She just didn't have the cojones to walk through it. Like this:

"Mr Justice, what you are saying is that there are many people locked up in prison who are there because their 6th Amendment right to confront their accuser was stripped from them, and however wrong that may be and no matter how wrong it is, it's a wrong that can't be righted because there are so many of them that it would be an inconvenience to the states and to the government to undo it. Mr. Justice, all of us here have taken oaths, swearing to uphold the Constitution, and as someone who takes the oath I took seriously, I'm having trouble wrapping my mind around that position."

Bo Steed said...

This may be the best evidence yet that Justice Stevens is off his rocker, i.e., that he cares about somebody's moot court experience. Equally relevant may have been a query about whether poor Franny played intramural volleyball

John Jenkins said...

hat's something Justice Stevens actually said during oral argument yesterday. When the lawyer, Franny Forsman, said "no," he commented: "It was an awfully good moot court."

I'd have read that completely differently. When she said she wasn't a finalist, and he said it must have been an "awfully good" moot court, that means that she's doing well, so the moot court must have been especially strong.

DevotedReader said...

I think you've miscontrued Justice Stevens'question. I think he was bestowing a huge, if slightly oblique, compliment. Ms. Forsman's oral argument according to some who were there (and my reading of the transcript) was brilliant--she was dogged but respectful and adeptly handled lots of questions. I think Justice Stevens thought so. And he apparently knew that she was a Notre Dame Law School graduate.

Ann Althouse said...

Vee: I'm not saying he was berating her, but it was a strange thing to say and actually patronizing in my view. Why waste time at oral argument on that and on the fact that he did a moot court at her school?

Mack said...

How can Stevens, as an outlying liberal on the court, tell anyone "nice try?" Doesn't he dissent more than anyone else? Seems to me he was making an off-hand comment, reflecting that he was impressed (since it reminded him of this great performance), and saying something nice about Notre Dame.

Off his rocker? Condescending? Please. This is the kind of thing (nice) old people say.

teddy_kgb said...

That's how the SCOTUSBLOG recap read too - that it was intended as a roundabout compliment because a sitting justice can't exactly say "that was a great argument" at the end.

The respondent was fighting up an uphill battle from the start, but who knows - she may have changed some minds. I though her Teague v. Lane responses were good, as was her Gideon tie-in.

Richard said...

Arrogant bastard. Reminds me of when Rehnquist was asked if he planned to resign from the Court anytime soon. His response, "For me to know, and for you to find out." As if we worked for him. Heh.

Daryl Herbert said...

Of course it's a compliment.

It's a consolation prize.

Lawyers would rather win. That's the ultimate affirmation of their lawyering skills.