Tom Goldstein visits W&M ACS

September 30, 2008 | | Comments Off on Tom Goldstein visits W&M ACS

Tom Goldstein + W&M ACS“That was the most enjoyable hour I have spent in all of law school.”

Compliments like this have been pouring in for Tom Goldstein’s visit with W&M ACS this past Friday. His talk, titled “How a Supreme Court Practice Works”, gave us insight on Goldstein’s meteoric rise from law school “reject” to one of the nation’s top Supreme Court litigators.

His story begins with a distant cousin writing a letter to American University law school, helping him gain last-minute admission. This, Goldstein said, was a perfect example of how your legal career can be propelled by who you know– a recurring theme in Goldstein’s path to to the top.

While in law school, Goldstein managed to secure a part-time gig with Nina Totenberg at NPR because a Harvard student had to delay his arrival for the job due to a law review write-on competition. In Goldstein’s words, “I didn’t have that kind of problem.” He helped Totenberg out during a few Supreme Court confirmation hearings in the mid-90’s began creating a personal network of DC connections. During his stint with Totenberg, Goldstein did something fairly simple that nobody else was doing; specifically, he used a calculator to figure out statistics on the Supreme Court decisions. He determined who was the swing vote how many times and some other basic numbers.

After graduating from law school, Goldstein continued to crank out these numbers. By virtue of being the only one doing it, or perhaps they were too lazy to do the long division themselves, publications like the Wall Street Journal and the New York Times began quoting him. “According to Tom Goldstein, a Supreme Court expert who follows the docket very closely…”

Meanwhile, Goldstein was working in private practice and was using his statistical analysis to predict which circuit split cases the Supreme Court might grant certiorari. He landed his firm about four cases and on the fifth one he told his supervisor, “I would love the chance to argue one of these.” His supervisor, not surprisingly replied, “Perhaps you should try out another court first before the Supreme Court. You know, maybe get your feet wet at the Court of Appeals or something?” 

Instead, Goldstein quit his job and decided to start his own firm. Using his first-mover advantage, Goldstein began cold-calling potential Supreme Court case holders and pitching his services. When they asked him why they should give him their case, he would simply say, “Well, did you see the New York Times? They consider me an expert on the Supreme Court who follows the docket very closely…” 

Goldstein landed a few cases and quickly expanded his network of legal professionals. He contacted Stanford and asked to set up a Supreme Court clinic. When they asked why, he would simply say, “Well, did you see the New York Times…” Harvard got jealous, so they set up a Supreme Court clinic with him too. Goldstein essentially made a decision to corner the market in free Supreme Court work. And, he has done exactly that.

His advice to W&M ACS was to find something you love and do it, and do it better than anybody else. If nobody else is doing it yet (e.g. SCOTUSblog), you have a tremendous opportunity to be the world’s best– hey, it’s statistically proven.

“War Stories” and Q&A Session

As the second chair on Bush v. Gore, Goldstein had plenty of stories to share with us. Most of the briefing was done in the 2nd floor bedroom of his house, which also happened to be where his practice was based. When the deadline for the briefing was approaching, they moved all the operations to the Watergate hotel; in retrospect, not the most historically wise move. A few hours before the brief was due, Goldstein and his colleagues realized they did not have a printer. Pop trivia: Did you know that the brief for Bush v. Gore was printed on a “stolen” dot-matrix printer from the Watergate hotel check-in?

Also, to elude the Supreme Court press and paparazzi when the brief was due, Goldstein, who described himself as a bit scrubby after the marathon brief-writing, decided to stick the papers into the back of his pants and sneak into One First Street unnoticed. Nobody in the audience asked the follow-up question– boxers or briefs?

Goldstein told a story about how he would fill out a form on the desks at the Supreme Court in order to request a court reporter from one of the attending clerks during oral arguments. There was some commotion, and note-passing involved during the arguments, which eventually lead to a phone call complaint. Goldstein was told that he was apparently the only person in the history of the Supreme Court to use “Form Five”, a vestigial piece of paper left on the desks to request sources. When Chief Justice Rehnquist found out who was causing all the commotion, he removed Form Five from the desks, and told somebody, “Goldstein can do his own f*@king research.”

When asked if he thought they would ever allow television cameras in the Court, Goldstein said it would be over “Justice Souter’s dead body.” Goldstein acknowledged a generational change would need to occur first, and speculated that Justice Roberts and Justice Alito might be more comfortable with the idea. Nevertheless, it won’t be happening any time soon, but audio for cases might happen sooner.

Finally, Goldstein was prompted to speak about retied Justice Sandra Day O’Connor, the Chancellor of the College of William & Mary. He spoke about how the band of experiences in the Court has narrowed incredibly without her, and the unique perspective she brought having been in the legislature and he spoke about her views as a woman. He finished by applauding her for “doing incredible things” since she’s retired.

Our chapter managed to snap a quick photo (and a “fauxtograph“) with Tom Goldstein before he left for the annual IBRL Moot Court preview, where he argued on behalf of FCC in the case FCC v. Fox Television Stations (stay tuned for a recap of that I wrote for the Marshall-Wythe Press).

Tom Goldstein Fauxtograph from W&M ACS on Vimeo.

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