18 March 1996
WASHINGTON – Like many appellate litigators, Kenneth S. Geller has a special interest in the academic side of the law. So it’s not surprising he takes particular delight in being one of the four authors of the seventh edition of “Supreme Court Practice,” a 1,064-page treatise that covers every aspect of lawyering before the court.
“It’s a lot of fun seeing your name on the spine of a big book like this and to have the Supreme Court citing you,” says Geller, managing partner of the D.C. office of Chicago’s Mayer, Brown & Platt. “It’s a kick.”
Geller’s contributions to the seventh edition, published in 1993 by the Bureau of National Affairs Inc., included helping to update the 1986 version to record such changes as the new Supreme Court rules issued in 1990. “Now I’m keeping notes for the eighth edition, keeping track of such developments as the GVR [granted, vacated and remanded] decisions this term,” he says.
Geller, 48, credits his firm for giving him “tremendous support” to work on the book since 1991. He notes, however, that the book “may attract some cases to the firm.”
Mayer Brown has a strong connection to the tome. It was begun in 1950 by Robert L. Stern, a firm partner, and Eugene Gressman, a professor at the University of North Carolina School of Law. The other author is Stephen M. Shapiro of Mayer Brown’s Chicago office, who is the firm’s senior appellate litigator.
Geller is “extremely well suited” to be an author of the book, says Kay Oberly, general counsel of Ernst & Young in New York who worked with Geller both in the U.S. Solicitor General’s Office and at Mayer Brown. “He has spent a big chunk of his career on Supreme Court practice and knows it inside and out.
“He also combines the ability to see the big picture with being meticulous about details,” Oberly adds. “He gives the ‘bible’ even more enhanced credibility than it had before.”
It was the law’s academic aspect, together with its practical application, that attracted Geller to a legal career. The Bronx, N.Y., native decided on law school while attending the City College of New York, from which he graduated magna cum laude in 1968.
“I like the fact that law, especially in my current job, has an academic focus plus the real problems of the world,” he says. “And it’s fun to see what happens to your work product.”
After graduating magna cum laude from Harvard Law School in 1971, Geller clerked for Judge Walter R. Mansfield of the 2nd U.S. Circuit Court of Appeals in New York. He then worked less than a year for New York’s Nickerson, Kramer, Lowenstein, Nessen & Kamin before beginning a lengthy, and occasionally high-profile, period of government service.
“In 1973, I read in the paper that the Watergate Special Prosecution Force was being established, and I knew a lot of people who were putting it together,” Geller recalls. “There was a Harvard connection, with Archibald Cox, Peter Kriendler and others, and it sounded interesting . . . And they hired me.”
Nobody knew what Watergate would be. It could have been a washout,” he adds. “I moved to Washington thinking it would be for a year or two and ended up in the government for 13 years.”
Calling his Watergate experience “a highlight of my life,” Geller says he worked on a number of investigations, doing mainly brief writing and legal analysis, and on one of the minor trials. But near the end of his 2-1/2 year stint, he had a special experience.
“In 1975, I was part of the group that took Richard Nixon’s deposition in a civil suit over ownership of the [Watergate] tapes,” he says. “I thought, here I was, 27 or 28 years old, sitting in what had been the Western White House in San Clemente. Those were quite heady times, and an unbelievable experience.” Geller adds that during the deposition, the deposed president was — as might be expected — “in a funk” and “unpleasant.”
Geller left later that year for the Solicitor General’s Office on the recommendation of Philip A. Lacovara, a member of the Watergate force who had worked in the office, and found it “much more exciting legally” than the Watergate job.
“I went there even though [Robert] Bork was the SG,” Geller says. “He was not that popular with the young lawyers in the office because of his role in firing Cox as special prosecutor in the Saturday Night Massacre, but I came to like him.
After four years as an assistant SG, Geller was thinking of moving on, but then in 1979 was promoted to one of the office’s four deputy slots. “I didn’t have the sexiest jurisdiction — not criminal or civil rights, but cases out of the [Justice Department’s] civil division dealing with independent agencies, immigration, and the Tort Claims Act,” Geller says.
He jumps up to show a memento of a Federal Aviation Administration case given to him by the agency and to point out other case souvenirs that decorate his office, which overlooks the George Washington University campus and its law school. Other office souvenirs include some model trains. “They are from transportation clients, and the kids love to play with them when they come to the office,” Geller says, referring to his children, Eric, 5, and Lisa, 3. His wife of six years, Dr. Judith B. Ratner, is a pediatrician, and the family lives in suburban Chevy Chase, Md.
One memorable argument among his 32 Supreme Court appearances while in the SG’s office came in Heckler v. Chaney, 461 U.S. 458 (1985). The case was a challenge by an Oklahoma death-row inmate to his planned execution by lethal injection based on the Food and Drug Administration’s failure to certify the drug to used “as safe and effective for killing,” Geller says. “We won, 9-0; we even got Justices [William J.] Brennan and [Thurgood] Marshall. Justice [Antonin] Scalia still talks about that case; he was in dissent when the D.C. Circuit went the other way.”
Geller’s first argument also produced a victory. He prevailed, 7-2, in United States v. Ramsey, 431 U.S. 606 (1977), in which two defendants challenged the warrantless search by a U.S. Customs Service agent of a package from Thailand that turned out to contain heroin. “Right after that,” he recalls, “I argued a technical issue on pretrial appeal in the case of Capt. Jeffrey McDonald, who was later convicted of killing his wife and two kids.”
Working in the SG’s office “is an unparalleled experience for an advocate,” Geller says. “If you are a litigator, particularly an appellate litigator, it’s a highlight of your life because you get to argue three or four cases a year in the Supreme Court. Most lawyers never do it, or never do it more than once.”
In 1986, Geller decided to leave the office for private practice. “I had a good friend, Steve Shapiro, in the SG’s office who had gone back to Mayer Brown in Chicago, and he said if you want to join the firm, give me a call,” Geller recalls. “By then I felt I had been in government long enough and wanted to try something new. But I was totally unsophisticated; I didn’t interview at any other firms.”
After some “soul-searching,” Geller became part of the trio that left the SG’s office to form an appellate practice group at Mayer Brown’s D.C. office, which then had 19 lawyers. The others were Oberly and Deputy Solicitor General Andrew L. Frey.
The office now has about 75 lawyers, while Mayer Brown totals around 600, with offices around the country, including Los Angeles, and in Europe, Geller says.
“I have had a lot of fun. We’ve built the office from a small sleepy office to the most exciting office in town in many respects,” Geller says with a burst of enthusiasm. “We’re the most profitable part of the firm; if we were a stand-alone office, our profits per partner in 1995 would have been the second highest in D.C., behind Williams & Connolly.
“And we also have amazing things in the office,” he adds, rattling off a list of mergers and major cases. “We clearly have the largest appellate group in the country, with 30 lawyers in D.C., Chicago and New York, and we clearly have more Supreme Court arguments than any other group.”
Geller produces a copy of the current eight-page description of the firm’s 26 high court “pending matters,” saying an updated report is sent monthly to the firm’s clients.
His clients, meanwhile, give him high marks.
“Ken is one of the finest lawyers I know,” says John M. Thomas, counsel for appellate litigation at the Ford Motor Co. in Detroit. “His writing is clear and concise, and his analysis usually is directly on point and persuasive. He’s one of the few people Ford turns to when it has cases in the Supreme Court.”
Thomas also has worked with Geller through the Product Liability Advisory Council, a corporate-backed group that submits amicus briefs on various tort issues. Geller has produced briefs “on federal pre-emption issues,” he adds.
Oberly of Ernst & Young says, “I haven’t had the need for Supreme Court counsel, but if I did, I would probably call Ken before anyone else. He has the combination of practical instincts and academic intelligence that is probably unmatched.
“Ken is one of the smartest lawyers I know, and coming from appellate litigation, I meet a lot of smart lawyers. It’s a very select list,” Oberly adds. “He masters cases quickly, regardless of the subject matter, and thinks of new angles. And he has a good sense of the justices, what makes sense to them.”
In addition to his managing partner duties, Geller says he works on “lots of Supreme Court cases,” including three that will be argued in April, and has argued two himself since coming to the firm. He notes that while he was in the SG’s office, “I think I lost only two cases; here, I’ve lost both of them.”
In one, he presented Shell Oil Corp. in challenging an Iowa tax, and in the other he argued for General Motors Corp. in its battle against a Michigan workers’ compensation statute. “The [federal] government joined the other side in both cases, and they have a lot of influence,” Geller says in mitigation.
“In the ‘been there, done that’ category, I have just as much fun arguing the lower courts now,” Geller says. He cites recent cases in Arizona and New Jersey, and his pending March 29 argument before the California 2nd District Court of Appeal, in which he will represent the Washington Metropolitan Area Transit Authority in a dispute with a Los Angeles contractor.
But Geller also continues to follow the Supreme Court closely for the practice book, as well as for his participation in seminars on the court sponsored by the National Association of Attorneys General and the State and Local Government Legal Center.
Geller’s main piece of advice for high court advocates is that it “really is different arguing there than in any other court, because they are not really bound by any precedent.”
“There is much more of a premium on focusing on the logic of your position and the policies underlying it – does it make sense,” he adds. “Some practitioners ignore this approach because they have some precedent from 35 years ago. But if the question were settled, the justices wouldn’t have granted the case.”
Asked about the value of oral argument, Geller says: “I’ve seen hundreds and have rarely seen a case where it makes a difference.
“But the justices say it does, and who am I to disagree,” he adds with a smile. “It’s still an important part of your case because you can answer questions that might be troubling the justices. It can be useful.”
Mayer, Brown’s Frey, an appellate-group colleague who has argued more than 60 cases before the high court and has worked with Geller for nearly 20 years, makes a case for the proposition that the justices do listen to Geller, if not always in arguments.
“Ken submitted the most thoughtful comments on the new Supreme Court rules [that went into effect last October],” Frey says. “Virtually all of Ken’s comments were adopted, and that’s really remarkable. The rules make life more livable for practitioners and are a symbol of how effective he can be.
“He also has done yeoman’s work for the publications committee of the Supreme Court Historical Society,” Frey adds.
[Copyright 1996 Daily Journal Corp. Reprinted With Permission.]