April 27, 2004

My First Oral

I've unsuccessfully tried to attend oral arguments twice previously, so I was excited to get inside, particularly as one of the last dozen people seated. I stowed my belongings in the locker room and took my place on a chair at the back. The courtroom features several long benches, both in the middle and on either side, and then additional chairs wherever they can be squeezed in.

As often happens while waiting to get inside the Supreme Court, the people in line had bonded and we talked in whispers in the half hour before the justices arrived. A gentleman seated behind me pointed out that Solicitor General Theodore B. Olson, who as the administration's counsel was arguing for Cheney, was wearing tails. This is not an affectation peculiar to Olson; according to an interview, advocates traditionally wear formal attire to argue before the Supreme Court. Before the arguments started, several members of the Illinois state bar, including Cook County Judge Robert W. Bertucci, were admitted to that of the Supreme Court.

Each of the justices who participated heavily seemed to have their own idea about what was important in the case. Scalia focused mainly on what made someone a member of a government commission. His own view, which he stated clearly and repeatedly, was that anyone who had a vote was on the commission. If non-governmental employees such as Ken Lay of Enron had a vote, they were members of Cheney's task force; if they didn't have a vote -- regardless of whether or not anyone else did -- then they weren't members, de facto or otherwise.

Breyer was surprisingly mean to the attorney for Judicial Watch Inc. When Orfanedes tried to argue that non-governmental employees could influence policy strongly even without having a formal vote, the justice said that Congress, in passing the Federal Advisory Committee Act, could not have intended government to develop policy in a cocoon. Orfanedes began to reply, "I don't think--" and Breyer interrupted with, "That's right, you don't think."

I found the justices' hypotheticals about cocoons and such to be a bit silly. FACA, as one might guess from its name, applies only to committees, and a phone call from a cabinet member does not create a committee. Moreover, Judicial Watch & Co. are not saying that these committees should have their access to private individuals limited, only that substantial contributions from non-governmental employees make those people de facto committee members, and thus their identities should be known to a public that did not elect them nor hire them.

Olson's spectre of non-stop lawsuits to have this information disclosed also was excessive. The executive branch presumably has a limited number of formal committees, and a limited number of people outside the government who strongly affect what those committees come up with. Moreover, to pretend that "there is no such thing as a de facto member" stretches credulity. Merely because certain people are not named to the government commission does not mean that they do not have as much as, or more, influence than those whose names are listed.

Of course, the fundamental basis of the lawsuit is the Sierra Club's pique at having environmental groups shut out of the decision-making process while energy industry executives were consulted. Sierra is fine with having private individuals and organizations lobby the government and try to affect policy -- heck, that's the business they're in. What bothers them is the secrecy and one-sidedness of the Bush Administration's invitations. If the cocoon is one extreme, having policy written by the industry affected by it, with little or no moderating influence by public interest groups, is the other.

O'Connor and Ginsberg directed their questions mostly to what the government did wrong in this case, whether by commission or omission. The former wanted to know why the government wasn't directly challenging the constitutionality of FACA, and the latter was puzzled by the government's partial compliance with the FACA request if the Administration's position truly is that the original lawsuit is illegitimate.

Unsurprisingly, Justice Thomas was quiet throughout oral arguments. At the beginning he was leaning back in his chair, his head also tipped back, but a couple of minutes into Olson's argument someone handed him something and he abruptly sat up, put on his glasses and paged through it. It didn't seem to produce any questions, though; by the end of Olson's time, Thomas was back to leaning.

Stevens was the first to posit the aspect of the case I found really head-scratch-worthy: What relief do Judicial Watch and the Sierra Club seek from winning this lawsuit? Olson claimed that the discovery -- the turning over of information in order to fight the case -- is "vastly broader" than what they would have gotten if the government had simply complied with the FACA request. In other words, just by getting the tools they claim to need to pursue the suit, they will have gotten what they wanted in the first place: Cheney's records. As Souter put it, is discovery inherently the win?

Hillary Clinton's 1993 health care task force had to turn over its records because the First Lady was deemed not to be a government employee, and thus her committee fell squarely under FACA simply by virtue of her being on it. Though Clinton was mentioned briefly, Cheney's case is different. The vice president obviously is a government employee, and the official administrative record shows only other government employees as being on the energy task force.

Incidentally, Olson's long experience becomes very appreciable when seeing him during oral arguments. He never became visibly flustered, and always spoke in a calm, even tone, addressing justices by name. Morrison, the attorney for Public Citizen, was far more excitable; he would raise his voice and refer to the justices simply as "Your Honor." Possibly he was concerned that he would be mildly rebuked, as some advocates have been in the past, for getting the justices mixed up with each other.

At the end of arguments, when I walked past the enclosure where the organizations suing Cheney were holding a mini-press conference, a duck was splashing around in the fountain. How it got there (brought by the Sierra Club?) is a mystery to me. During that conference, someone asked one of the attornies if he thought Scalia had treated him fairly. The attorney gave the sensible answer that while he still thought Scalia should have recused himself from the case, the justice had acted without prejudice during oral arguments.