What's Wrong With The Supreme Court Bar?

Not long ago, I enjoyed dinner with none other than Charles Fried, a former solicitor general of the United States, and a long-time Harvard law professor. (He quipped that he had thrice been voted tenure, having moved in and out of the academy in the course of his career.)

Fried is everything I am not -- he is witty, urbane, self-assured. It was hard not to feel envious of the man. While I cannot say he was born to the manor, he inhabits a rarefied world. My world is plenty more visceral and a whole lot less prestigious.

The two of us had been invited to participate in a discussion on appellate advocacy by Sonia Sotomayor of the Second Circuit. She teaches a seminar at the Columbia law school.

I get invited to do things like this from time to time, and it always surprises me. I figure I am usually the entertainment section of a program. Let the serious speakers trot out their doctrinal statements and learned comments. Then I waltz in for comic relief. If Fried's and Sotomayor's presence, I felt that I was there perhaps to serve the refreshments. As the evening began, I was intimidated; the weight of the chip I carry on my shoulder oppressed. It was hard to shake off.

I had dinner with Fried and Sotomayor later that night at a quiet spot in Manhattan. It will remain memorable for as long as I practice law. There was a "pinch me" quality to the entire experience that remains with me still. Fried represented the United States before the Supreme Court; Sotomayor may well be on her way there as a justice. Me, I was due in court the next morning on a child sex case. It seemed dissonant.

One comment Fried made in the course of the evening has stuck with me. We were discussing the sorts of pressures a lawyer feels in a high-stakes case. I said something about my heart's having been broken in one case or another. Fried did not miss a beat. "My heart has never been broken by a client," he said.

I was surprised by that remark. On reflection, I feel bad for Fried. The law is about human drama and private turning points made public. Heartbreak really is part of the turf. I believe the professor said he'd never stepped foot in a courtroom until the age of 50.

Fried's argued some 26 or 27 cases before the Supreme Court. He argued Daubert, a case that remade the law on the use of expert testimony in our courts. And he has written wise and wonderful books on the law.

But somehow I came away saddened. All the brilliance in the man but yet no blood left on the floor of his local court. I wonder whether that same sort of cerebral detachment typifies the Supreme Court bar, and the justices themselves. I suspect it is so. So much the worse for the law.

Comments: (2)

  • Norm, do you wonder why we love you? You don't jus...
    Norm, do you wonder why we love you? You don't just represent us and speak for us, you remain one of us. Your skills and achievements have not stolen you; they have not robbed us of you.
    Posted on May 4, 2009 at 2:34 am by Anonymous
  • Norm,
    I found my way over to your blog from Simpl...
    I found my way over to your blog from Simple Justice. This post speaks to my condition. I just recently had a real heartbreaker of a trial, which I talk about on my blog here. I agree that it is only human to care about our clients on a human level, and to be affected by their fates.
    Is there a way to subscribe to your posts? I see a comments feed at the bottom of the page, but not a posts feed.
    Posted on May 3, 2009 at 6:25 pm by John Kindley

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