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Reprinted with permission from the September 22, 2008 edition of National Law Journal © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

22 September 2008

Many familiar faces to appear before justices
The National Law Journal

National Law Journal; September 22, 2008

Article mentions Mayer Brown’s “strong appellate bench” and lists Andy Pincus, Andrew Frey and Charles Rothfeld as attorneys who will argue in front of the Supreme Court this term.  Also mentions the Yale Law School Supreme Court Clinic.  

WASHINGTON — Veteran U.S. Supreme Court litigators dominate the handling of cases scheduled for argument thus far in the new term — in both numbers and potential importance.  

"I've had a couple of cases in the last few years where it seems I'm up against most of my friends in the Supreme Court bar. This is another one of those years," said David C. Frederick, partner at Washington's Kellogg, Huber, Hansen, Todd, Evans & Figel, and counsel of record in three cases slotted for argument.  

The justices will see familiar faces in more than half of the 43 cases granted review. The Supreme Court bar's dominance reflects its continuing influence and success as well as a relatively new channel of high court work — law school Supreme Court clinics.  

Frederick's three major arguments so far include two closely watched pre- emption cases, in one of which he will face former Solicitor General Seth P. Waxman, head of the appellate and Supreme Court litigation practice group at Wilmer Cutler Pickering Hale and Dorr, and in the other of which he goes up against former Solicitor General Theodore B. Olson, co-chairman of Gibson, Dunn & Crutcher's appellate and constitutional law group.  

Frederick, a former assistant to the solicitor general, also will argue a key arbitration case, representing employees alleging age discrimination. This case, he noted, is a product of the Supreme Court Clinic at the University of Texas School of Law, where he is clinic co-director. His partner, Michael Kellogg, will argue the term's only antitrust challenge thus far.

Olson also has a trio of granted cases. In addition to the pre-emption case, he is handling an important Clean Water Act challenge and a Rhode Island case involving the Indian Reorganization Act of 1934.  

But veteran high court litigator Carter Phillips, managing partner of the Washington office of Sidley Austin, leads the pack with four arguments now, raising diverse legal issues — from "fleeting expletives" and the Federal Communications Commission, to pregnancy discrimination and pensions.

Phillips is co-director with his Sidley colleague, partner Jeffrey Green, of the Supreme Court clinic at Northwestern University School of Law. Green said the justices will hear two clinic criminal cases, one of which will be argued by Chicago partner Robert Hochman, a clinic faculty member.

The "who's who" of Supreme Court bar veterans arguing this term also includes Mark I. Levy, chairman of the Supreme Court and appellate advocacy practice in the Washington office of Atlanta's Kilpatrick Stockton; Maureen Mahoney, head of Latham & Watkins' appellate and constitutional practice in the Washington office; Thomas Goldstein, co-head of the Supreme Court and litigation practice in the Washington office of Akin Gump Strauss Hauer & Feld; Robert A. Long, chairman of Washington-based Covington & Burling's appellate and Supreme Court litigation group; E. Joshua Rosenkranz, chairman of Heller Ehrman's appeals and strategy group from the New York office; Jeffrey L. Fisher, co-director of Stanford Law School's Supreme Court Litigation Clinic with two arguments; and Jeremiah A. Collins, partner at Washington-based Bredhoff & Kaiser, with two arguments.

Jay Alan Sekulow, chief counsel for the American Center for Law and Justice, and a familiar voice in the high court on First Amendment issues, represents Pleasant Grove City, Utah, in a First Amendment challenge involving public forums and monuments. He will face Pamela Harris, of counsel to O'Melveny & Myers' Washington office, representing the unusual Summum church.

Harris specializes in Supreme Court and appellate litigation, with a focus on public interest litigation, which, she said, tends to be pro bono and with a large overlap with the firm's pro bono docket. The Summum challenge came to the firm as a referral, she said, but she and partner Walter Dellinger also are co-directors of the Harvard Law School Supreme Court and Appellate Practice Clinic.

"At the clinic, we are looking for high public impact cases," she said, adding, "It's a lot of fun and I love it."

Mayer Brown's strong appellate bench is out in force this term as well. Partners Andrew Pincus and Andrew Frey, each have one argument, and counsel Charles Rothfeld is handling two cases.

Pincus and Rothfeld direct Yale Law School's Supreme Court Clinic which, said Pincus, has produced four cases on the argument docket so far. He and Rothfeld will argue three of them.

In the end, this is just a snapshot of the bar's work in a term. Many of these lawyers and their firms also contribute heavily to amicus briefs.


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