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Monday, September 21, 2009
Courts - More on: Sotomayor not yet decided on cert pool
Updating this ILB entry from July 16th, Tony Mauro has another article on the practice today in The Blog of Legal Times. This one is headed "Sotomayor Joins It, Lawyers Attack It." A quote:
"The theory of the pool is that it is never wrong to deny [a petition] because the issue will come up again," said Roy Englert of Robbins, Russell, Englert, Orseck, Untereiner & Sauber. As a result, Englert said, important cases that merit review are "falling through the cracks ... The pool is not serving the Court very well." He cited research by University of Minnesota professor David Stras -- who also spoke at the conference -- showing that there is a strong correlation between the recommendations of pool clerks and whether the Court grants or denies a case.Sidley Austin's Carter Phillips concurred, acknowledging frustration with the fact that because of the pool, many of the petitions he writes are not read by any justice -- a truth that is difficult to explain to a paying client after the petition has been denied. "I am writing petitions for people the age of my daughter," Phillips said -- a comment that had some literal truth for him. Phillips' daughter Jessica clerked for Justice Alito two terms ago (but was recused in any cases involving Sidley Austin).
Former solicitor general Seth Waxman also weighed in, freely acknowledging that "almost all the cases I get paid to file are denied." The partner at Wilmer Cutler Pickering Hale & Dorr agreed that clerks have little incentive to recommend that the Court grant review. "The only way a clerk can become truly notorious," Waxman said, is to recommend review in a case that the justices later dismiss because it has a procedural flaw or other defect.
Posted by Marcia Oddi on September 21, 2009 05:39 PM
Posted to Courts in general