A: It is always exhilarating to argue before the court. It is such a demanding and challenging activity that I really can’t imagine anyone who is doing it well wouldn’t always feel some sort of extreme pressure, and that they have to be at their peak in order to perform properly.
When you are a repeat [Supreme Court] performer, [the justices] come to expect a certain level of advocacy from you.
A: It does happen. I clerked for Justice [William] Rehnquist, and when he became the chief justice, the court appointed me to present my maiden argument.
The case that I argued was due the respondent’s decision not to defend the decision below; there just wasn’t enough money at stake to justify the cost of attorney’s fees.
A: That I won. [Laughs] The government opposed my position, but I won a surprise victory.
Q: Were you raring to go back?
A: I did want to. I wanted to be an advocate in the Supreme Court. Then I had the opportunity to go to the Solicitor General’s Offi ce. And as my managing partner here [at Latham] said at the time, “Shoot the moon.” That’s what I did.
Q: Good motto. Did you enjoy your time at the solicitor general’s office?
A: I loved it. It is really quite a jewel within the Department of Justice and within the government. The lawyers are extraordinary; it’s a small office, great camaraderie, just outstanding performances by the lawyers.
After two years, I was ready to go. In private practice there is a lot more support. It’s easier to balance work and family life because you have a team of lawyers to help. But government is a wonderful thing, and I admire public servants enormously.
Q: What’s the biggest wow factor for you at the Supreme Court?
A: Probably nine justices sitting in black robes, just within arm’s length. You are surrounded by them. The podium is very close, so there are nine formidable intellects just hovering over you. I think it is them, en masse, that is so wow. Nine brilliant people all ready to grill you up.
The other thing is the architecture. The room itself is glorious. You know you are someplace very important, very special. It’s Roman. It’s very classical—burgundy velvet curtains and heavy mahogany.
Q: Which justice is the most formidable?
A: Justice [Antonin] Scalia can get very tenacious.
You can get very challenging questions from all across the bench, but one of the justices who always asked exceedingly diffi cult questions that went straight to the heart of the case was Justice [John Paul] Stevens.
He would often wait until the end of your argument, and he would politely interrupt you and say, “I just have one question,” and you knew it was going to be a zinger.
Q: How do you combat those zingers?
A: I would spend hours preparing and trying to think of every question and to craft the best answer I could for every possible question, literally hundreds of questions and just scores of hours.
Typically the questions that the court asked, if you’ve done your homework, are not going to be surprising. There might be a question that’s offbeat and a little different than the one you might have envisioned, but you should know the material well enough to be able to offer an answer.
Q: But you’ve been surprised before. I love the “fiction” anecdote. Can you tell it?
A: The most surprising question that I ever had at an oral argument was from Justice [Harry] Blackmun in a case involving Haitian refugees. He asked me during the course of the argument whether I had read The Comedians by Graham Greene. I had not.
Vanity Fair did a little blurb that said, “Ms. Mahoney needs to do her summer reading.” I often say if you want to be really prepared, you need to read more fiction.
Although it was the most surprising of all the questions I have ever received, it also didn’t matter whether I had read the novel or not. If the answer had been yes, then what? Were we going to talk about Graham Greene’s take on oppression in Haiti? I don’t know. There’s a lesson there—there are questions where we can say, “I don’t know” and it won’t hurt your case.
Q: What was the Haiti case about?
A: Haiti is a troubled country, and at the time, there were [many] Haitians who were trying to fl ee. They were fleeing in unseaworthy boats and trying to make it to the United States so that they could go through asylum processing and try to stay in the U.S. Many of them were dying at sea.
The Coast Guard was in a very diffi cult position because they really didn’t have the capability to rescue them all.
The first President Bush decided that [the Coast Guard] would interdict. The Coast Guard would get the people off the boats, they wouldn’t provide asylum processing; then, they take them straight back to Haiti. They would do asylum processing in Haiti; if they had a genuine fear of political persecution, they could come to the United States.
That policy was very controversial. It was challenged by a group at Yale. Actually, it was Harold Koh, who is the legal adviser for the State Department now.
I was in the Solicitor General’s Office at that time. Clinton was running for president and he said that the Bush policy was illegal, and that the law required the United States to provide the Haitians rescued at sea with an asylum hearing before returning them to Haiti.
Meanwhile, this is the end of the Bush administration, we’re filing briefs defending the policy. The election happens, Clinton’s elected, George Bush is out of office, the solicitor general, who was Ken Starr at the time, is out of office.
I was left with the case, which was going to be argued in April 1993, shortly after the change of administration. When I approached the argument, I wanted to avoid questions about Clinton’s views as a candidate, so I repeatedly made reference to “the president” so as not to call attention to any differences in the views of Clinton and Bush. The Supreme Court justices did not ask about Clinton’s position in the campaign and in an 8-1 decision upheld the legality of the policy, which had first been adopted by Bush.
Q: You’ve got some big cases attached to your name. Grutter v. Bollinger, Arthur Andersen v. United States.
A: The Arthur Andersen case holds a special place in my heart. Arthur Andersen was one of the world’s leading accounting fi rms with 28,000 employees before it was convicted of destroying documents related to the collapse of Enron. The firm had destroyed documents in accordance with its standard document retention policy before any formal investigation of Enron had begun. Andersen hired us to try to secure a reversal of its conviction on appeal. I was completely persuaded of Andersen’s innocence but worried that the Supreme Court would refuse to hear the case because the firm had already collapsed, and the statute the federal government used to secure the conviction had already been amended. But [Latham & Watkins colleague] Scott Ballenger and I fi led an impassioned plea on Andersen’s behalf, and I regard the Supreme Court’s decision to hear the case in 2005 as one of the greatest victories of my career.
We won the case in a 9-0 decision reversing Andersen’s conviction. The court held that the trial was unfair because the jury had been instructed that Andersen should be found guilty even if its employees believed in good faith that it was lawful to destroy the documents at issue.
I cherish that victory because there is no greater reward for a lawyer than vindicating innocence. It was also special because Chief Justice Rehnquist, who was a great mentor to me, wrote the opinion, and I was the last advocate to appear before him. He died the following summer.
Q: You’re probably most known for 2003’s Grutter v. Bollinger case.
A: The University of Michigan used race as one factor in its admissions decisions in order to promote broad diversity in its student body. Barbara Grutter, a white applicant to the law school, was denied admission and claimed that U of M violated her constitutional right to equal protection of the law.
The stakes in the case were very high. Virtually all selective colleges and universities in the country considered race in admissions and believed that their schools would essentially become segregated if the Supreme Court ruled that the practice violated the law. There were more than 100 amicus briefs filed in the case—which was the highest number in history.
The case was closely watched by many Americans. People slept out on the Supreme Court steps for several nights to get a seat in the courtroom. President Bush addressed the nation about the case on television.
The Supreme Court’s narrow 5-4 decision was viewed as an enormous victory. It enabled schools across the country to enroll diverse student bodies for the last 10 years while the controversy over affi rmative action continues.
I am often asked whether I wish I had passed on the opportunity to represent Michigan because some people think it caused me to lose out on a Supreme Court nomination. I was reportedly considered by the Bush White House as a replacement for Justice O’Connor, and some commentators believe I encountered opposition for my role in the affi rmative action case. Washingtonian Magazine, on the other hand, reported that I was not selected because the White House thought I was too similar to John Roberts. We are both Indiana natives who clerked for Rehnquist, served as a deputy solicitor general, and worked as Supreme Court advocates in private practice in Washington. Either way, I felt lucky to have been considered for the court at all and do not have any regrets about my representation of Michigan.
Q: So if the opportunity arose, you would want to sit on the court?
A: I certainly would love to, but I’m not running for the job.
Q: What’s your worst moment in the courtroom?
A: Worst moment after the courtroom, I know—I lost a case that I’m still devastated by.
It was a Court of Appeals case, a criminal case for Joe Nacchio; he was a CEO of Qwest and he was charged with securities fraud, insider trading, selling stock while supposedly having insider knowledge.
I won the case. I didn’t handle the case below, but I got his conviction overturned with a panel of the 10th Circuit. He was going to go back for a new trial and then the 10th Circuit took it en banc and I lost.
When Joe Nacchio had to report to prison—he gets out this year—I cried in my offi ce. I’m fairly certain that is the only case I have ever cried over, in 32 years. I didn’t just cry, I wept. The loss of liberty is an extraordinary event, and if you are a lawyer and you feel that it was your responsibility to prevent it, because someone was innocent, it’s quite a defeat. I haven’t gotten over it.
I firmly believed in his innocence, I still do; I felt that I did everything that I could but that I failed.
I was so disappointed in the system of justice, and for me, it was an absolutely heartbreaking loss.
Q: Let’s talk about those famous steps. Have you had your Hollywood moment?
A: Yes! Well, sort of. I do come out on the steps on occasion, but after the University of Michigan case, I came out and there were a lot of people—I think thousands of people—because of the nature of the case. But they were chanting someone else’s name. There were two advocates there for Michigan. I argued on behalf of the law school; and John Payton, who is recently deceased, argued on behalf of the undergraduate institution. He was a real hero in the civil rights movement. It was very funny. He had a tremendous career, and it was a great and rightful moment—just not for me.
Q: Anything we didn’t discuss that you’d like to?
A: It’s not something you need to talk about, but usually people talk to me about being a woman.
Q: You know what? I often avoid asking that in an effort to not make the idea of a successful woman be so … newsworthy?
A: Oh, I get that. But it’s come back into the forefront a little because of this Anne-Marie Slaughter article, “Why Women Still Can’t Have It All.” Did you read that?
Q: In The Atlantic? I did.
A: I did, too. And I’ve been asked many times before then and since then, “Can women have it all?”
Q: What do you tell them?
A: That woman can have plenty.