A 'can-do' attitude
14 January 2013
National Law Journal
During his 22 years as clerk of the U.S. Supreme Court, William Suter has always been more than just a clerk in the bureaucratic sense. He has been the court's goodwill ambassador to the legal profession, specifically the lawyers who experience the honor and anxiety of arguing before the court.
Which is why, when the court announced Suter's plan to retire in August, practitioners across town expressed shock and sorrow at his leaving. Suter, 75, will remain on the job until the end of August.
"I knew this day was coming and have been dreading it for years," said Sidley Austin's Carter Phillips. "Bill was the perfect clerk of the court. That office is the most competent, efficient and friendly clerk's office in the country."
In a statement, Solicitor General Donald Verrilli Jr. said, "Bill Suter has been a great friend and provided invaluable assistance to the lawyers of the Solicitor General's Office throughout his distinguished career as Clerk of the Court. He has served our country with honor and integrity. We will miss him and we wish him the very best."
Arnold & Porter's Lisa Blatt added, "I will sorely miss him and his ability to put advocates at ease before every oral argument with his wonderful sense of humor and guidance. His love of the court and its history and traditions is infectious and he has undoubtedly shaped and improved the practice of the Supreme Court bar."
Former SG Gregory Garre, now at Latham & Watkins, concurred. "General Suter is an institution, within the Institution.…One of the most enjoyable things about arguing before the court is sitting through the briefing that General Suter gives to arguing counsel before every set of oral arguments. It doesn't matter whether it is your first argument before the court or a return trip, he always helps to put lawyers at ease."
That legendary briefing is part of what Suter saw as his mission to put lawyers at ease — a goal that also furthered the court's wishes for improving the quality of its increasingly intense oral arguments. His pep talk included offers of throat lozenges and a sewing kit — in case a seam fell apart at a crucial moment — and the advice to address justices as "Your honor" when a lawyer forgets the actual name of the justice. Better to do that than get a justice's name wrong — which used to happen more than you might think.
After a distinguished career that moved him up the ranks of the Army and its Judge Advocate General's Corps, Suter arrived at the court in 1991 with an upbeat "can do" attitude that earned him many loyal admirers. "General Suter always exudes an infectious sense of awe and excitement about the court," Garre said. Mayer Brown's Evan Tager said, "There are lots of ways in which he improved the processes of the court. But one of the things I look forward to most is seeing his happy face."
Suter consulted with practitioners before making changes in the court's rules, telling this reporter at the time, "We are deeply indebted to the Supreme Court bar." He ramped up an automated phone service that helped the public track the status of cases, and in 1995 launched an online bulletin board to help those with computers do the same thing. It was a precursor, by five years, of the court's own website. "We have to crawl before we walk," Suter said at the time. Phillips also praised Suter for "wonderful improvements in the process, including remodeling the lawyers' lounge and putting a women's restroom in it." Suter declined to comment for this story.
Also during Suter's tenure, it became more common for the court to announce it was granting review in cases on Fridays, soon after the justices discuss cases in closed conference — instead of the traditional orders list issued the following Monday. The change was made primarily to give lawyers in the case a precious extra weekend to get ready for briefing and argument.
Suter helped individual advocates with scheduling and other issues, as well. In 2010, South Dakota lawyer James Leach lacerated the heel of one foot in a swimming accident just days before he was set to argue at the high court in Astrue v. Ratliff. "My heel did not heal," he later told The Green Bag law review. Wearing lawyerly shoes to the court would have been extremely painful, so Leach asked Suter if he could wear his more comfortable, two-toned sneakers. Suter said yes, telling Leach the justices would not likely see his feet from the bench — and besides, lawyer David Boies wore sneakers for his 2000 argument in Bush v. Gore.
Sometimes, Suter's helpfulness toward advocates landed him in the middle of angry disputes. In 1996, two lawyers filed forms with the court saying they would argue on the same side of the commercial speech case Glickman v. Wileman Brothers. The two were Thomas Campagne, who had been with the case for years, and Michael McConnell, a veteran advocate (and future circuit court judge), who had been hired by some clients fearful that Campagne was not up to the task. Suter tried to mediate the dispute and get the two to agree on only one lawyer for the 30-minute argument.
The dispute erupted all over again, and Suter said that if the two could not agree, he would resolve it with a coin toss. Campagne won the toss and made what was widely viewed as an embarrassing argument that may have cost his side votes. McConnell sent the court a note disavowing some of Campagne's arguments, and after their side lost, one of the clients sued Campagne for the unusual tort of "failure to refer to a specialist." The suit was settled, and Suter swore off coin-toss remedies for disputes between lawyers.
ADVICE FOR PRACTITIONERS
Perhaps Suter's most permanent legacy will be his frequently updated "Guide to Counsel," first published in 1993, not long after he came to the court. Its drab title obscures the fact that the pamphlet is full of practical advice for practitioners with granted cases before the court, offering fascinating anecdotes that convey what works — and doesn't work — for lawyers arguing before the court. "Attempts at humor usually fall flat," is one admonition. "The same is true for attempts at familiarity. For example, do not say something like this: 'This is similar to a case argued when I clerked here.' "
After watching more than 1,000 arguments from his seat next to the court bench, Suter has become a connoisseur of successful advocacy. He can be seen taking occasional notes that turn into advice for the next edition of his guide for counsel. On page 7, without naming those involved, Suter praised the late Bruce Ennis for his handling of an off-topic question from Justice Antonin Scalia in the 1995 alcohol-labeling case Rubin v. Coors Brewing Co. "What is the difference between beer and ale?" Scalia asked, and without missing a beat, Ennis answered, briefly and clearly. "He knew the business of his client and it showed," Suter said with admiration.
The clerk also singled out for praise the government lawyer — it was Lisa Blatt — who conveyed during argument that she had a "total grasp" of how border searches are carried out, an issue in the 2004 case U.S. v. Flores-Montano. Suter urged practitioners to read a transcript of her presentation.
In a more recent edition, Suter was less praiseful about a practitioner's use of "fancy words" like "orthogonal." A University of Michigan Law School professor used the word during the 2010 arguments in Briscoe v. Virginia to make the point that a hypothetical raised by Justice Anthony Kennedy was "entirely orthogonal," or not pertinent to the case before the court. Chief Justice John Roberts Jr. interrupted to ask what the word meant, briefly derailing the train of thought. Scalia also chimed in. Suter's comment: "This caused a minor disruption that detracted from the argument. Counsel could just as easily have said, 'Right angle.' "
Reprinted with permission from the January 14, 2013 edition of National Law Journal © 2013 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.