from your perspective as a former congressman and a member of the clinton administration, you've worked both sides of pennsylvania avenue. number one, what do you think of the appointment of so-called czars? and what do you think the effectiveness of an i.p.'s are? >> well, first of all, i don't think that she is going to be a czar. first of all you have statutory authority given to certain agencies. and she's not going to have that kind of independent statutory authority. what she will hopefully be able to do if she's given the proper resources is to be able to help coordinate and manage the issues, elevate the concept of intellectual property protection into every single agency of government so they all believe this is a high-priority issue, and work with the congress on ways to make our enforcement and dealing with intellectual property more effective and more

positive. she'll also probably coordinate all the public comment, public discussion of this kind of thing within the government. it does show that congress is very good at passing. this iñiçó must say. thinks a very important thing they did. it shows that they believe this is a priority issue to our national economy and it need to be addressed at the highest levels. yesterday at the meeting she was thereñrñi and the vice-presiden- and the vice-president referred to her as a critically important person in trying to martial and coordinate the federal agencies. that's something i always found when i was working for the government. one agency and another agency may not always see eye to eye. turf is a biggest battle in government. i always used to say the dirtiest word in the four letter language was turf. ..

>> this has been "the communicators." ñi >> next, in discussion on the

books "a good call." speakers include legal times tony morrow. they each wrote an essay on a case for the book. the georgetown law center hosted this discussion in washington d.c. earlier this year. >> welcome. thank you for coming today for our discussion of the book recentlyñr released by the university of press on oral argument in the supreme court. i will moderate our discussion of "a good laurell." this book is 8 -- a good

quarrel each essay focuses on an oral apartment in a case before the supreme court and offers lessons on the role of oral arguments. the supreme court's decision making process is a uniquely closed process to the public. virtually all the court deliberations occur behind closed doors. one of the only exceptions is oral argument, when the court spent an hour in public discussion of the case. as such, oral arguments present a unique window on the supreme court and its decision making. the panelists have observed countless cases of oral arguments, having had the unique opportunity to observe what the court does in oral argument. their experience gives us an interesting perspective on this public face of the supreme court.

he served as cnn senior washington correspondent and is now dean of the college of mass communication and in -- information's studies at the university of south carolina, and tony morrow. let me say a word about the process will follow today. we will proceed first by asking tim johnson to describe how this book idea came about and what he and jerry hope to accomplish with it. will then turn to the palace to discuss the case is that explore in their chapter. they will tell us why they

and explain what we can learn about oral arguments from the case. then we will open up the discussion to broader questions. >> thank you all for being here today. this project was the brainchild of jerry goldman and night. jerry is the founder and continuing controller of oyez .org. when the project is complete, it will lock all audio that was ever released by the u.s. supreme court. jerry and i began working in early 2000 together to study oral arguments, something for which both of us really have a passion. we thought that it would be good to try to bring this process to many more people. as you know, you can go to the supreme court to hear the arguments, but seating is very limited. you may go in if you are lucky enough and hear an entire session of oral argument, but usually that is reserved for

puritan 50 people, and often fewer than 25. you can sit in the back row for just a few minutes to catch a glimpse of the justices sparring with some of the nation's best attorneys. jerry and i thought this would be great to open this process up to more people. with the audio on line that was one way to do it. we have an academic understanding of the oral argument process, and that is how we have thought about that process for a number of years. we thought it would be great to bring the public and much more insider perspective, and who better to bring that insider perspective than those who are at the court day in and day out from the first monday in october until the end of june every term, to telllp us, the readersf this country, those who may like the law, those who like understanding and knowing about the u.s. supreme court, what goes on during this proceedings and what those proceedings mean.

there was another part to this book that was always in that at of our minds that was able to come to fruition. making a unique book that wedded not only the written word, but allowing them to go in and point the reader not only to the written transcript but to the audio transit as well. as you are reading this book, you can actually hear the attorneys arguing with the justices, hear the questions posed from the bench, and how ñrthe attorneys deal with those questions. this book is the culmination of 5 1/2 to 6 years of work and working with these great authors. it melds their analysis with the reader's ability to go online and listen to particular clips of the argument, or to listen to the entire hour long oral

arguments. what we have for you today is a synopsis of four of those chapters, and hopefully as our for is deemed authors go through their description of their chapter, you'll hear some audio as well that they thought maybe the most telling audio from those chapters. >> thank you for having me keep it is an honored to be in this company. i picked my chapter as a slight act of rebellion. if you have ever read me, that probably will not surprise you. i think everyone on this panel has noticed that there has been an increasinglyñr professionalid supreme court bar. a couple of years ago by a dove to the tenor 12 -- i dubbed them

the harlem globetrotters, because they are so perfect. they never miss a shot. there is a sensibility that if you want to prevail, you just need to hire one of these top guns, and that was not always the case. i thought i would pick for my chapter and oral argument done by an rank amateur, by someone who had never set foot in the supreme court, who had only just been admitted to the bar, who was a surgeon by training and really should not have had any place there at all. the case i picked was the oral argument that it will probably remember from several years back, a gentleman who was an atheist was challenging the insertion of the words "under god" in the pledge of allegiance. he was challenging on behalf of his daughter, who he felt should not be compelled to say the

word god. i think we all thought going into that oral argument, holy train wreck, this is going to be a debacle. for those of us who had spoken to him on the phone or heard him interview before, he had that quality of being the absolute wrong person to argue a case in the court. he was incredibly brilliant but very smug, very angry. this was very personal. he wanted really to talk about the custody problem is having with his daughter more than he wanted to talk about the pledge. going into oral argument, a lot of us were thinking this is going to be a bloodbath, that this guy is too personal, to invest in, too angry, and having watched the harlem globetrotters of the years, i had acquired a sense of certain rules about how one conducts oneself.

the more it this passionate, the more professional and emotionalist you were, the better. any attempt to humanize the case or to say that you had a personal stake in the case was sure to backfire. i thought this was going to be a debacle and this guy was going to go in and start talking about his daughter and his investment in the case and it would be a wreck. and he did go in and do all those things. so maybe we can hear a little bit of his opening. >> this is what we thought would

happen. can you stop for one second? ñrit was working when we started this process. let me try one more time. i apologize, guys. i guess you are going to need to read to begin, and then we will bring the audio when we actually get it going. >> as compared to any other opening i had ever heard at the court, he started this way. every morning in the elk grove school district, teachers have their students stand up, including my daughter, face the flat, place their hands over their hearts and affirm that ours is a nation under some particular religious entity, the appreciation of which is not accepted by numerous people such as myself. i am an atheist. i don't believe in god, and

every school morning my child is asked to stand up, a step like, put her hand over her heart and say that her father is wrong. it was the most personal, the motive, invested emotional thing i had ever seen at the court. the reason i chose to do much chapter on it is that it was not a train wreck. it was one of the most not just fascinating, but persuasive oral arguments i have ever seen at the court in 10 years. right out of the gate he was ignoring all my commandments, personalizing and emoting and acting like he was smarter than them and talking back, and doing all the things you would never see one of these harlem globetrotter types do. he was really good. so i rode my chapter about how good he was and how persuasive he was, how much i thought he

brought the justices into his story. they became very invested inñi s custodial relationship with his daughter. it was the sort of thingçó that flew in the face of everything we think we know aboutñi how orl argument has to be depersonalized and how the parties are not really people, they are just on paper. ñri think i will stop there and just say that my chapter is sort of a lesson in how we view are not going to play by the rules, how you can sometimes break all the rules and still somehow win. i just want to be clear, he did not win. he lost on a standing issue, but i still think he was one of the most impressive oral advocates i have ever seen at the court. it made me think we should have a lot more beginners' tryout argument at the court just for fun. >> hopefully we will have the audio running for some you

others. it was all good, and now something has happened in the interim. >> thanks for putting together this show for all of us who wrote the book and to draw our public more into the internal workings of the supreme court. i chose the casey decision that was decided in 1992. i did so for what is a very obvious reason, at least for me. beginning with justice o'connor's ascension to the bench in 1981, it was very clear that roe vs. wade, the decision establishing a woman's right to have an abortion, was under siege. each time a new opinion came out of the court, the court appeared to be less and less committed to sustaining the right to terminate an abortion, and in fact it finally got to the point

where the majorityñi was down to five, 5-4. there had been indications in 1989 that o'connor might well provideñr evoked to overturn roe vs. wade, and indeed, the regular administration had tried several times to persuade the court directly to overrule it. ñri chose this particularñi casó because of the audacity of the council who argued in favor of maintaining roe. the women's rights movement very much during muchroe was in jeopardy -- very much fearing that roe was in jeopardy had fashioned it to be a test case. this was put together by the women's rights movement as a

fundamental test of whether roe was still a viable precedent. when catherine colbert put together a brief with her colleagues, they ask one simple question, and it is entirely unlike any question you will see at the front of any supreme court petition for review. has the supreme court overruled roe vs. wade? if you put that as a factual statement, the answer clearly was no, it has not overrule roe vs. wade. but it was very clear that the women's rights movement of the was a risk that the courts, when it address the issue, would overturn roe vs. work. they also had in mind the fact that in 1992 it was a presidential election year, and they were determined to turn this lawsuit and the supreme court case into a political campaign issue, to try

primarily to help bill clinton win the white house. in fact there is some evidence from the political world that this case and the of, this case did help. but there is another aspect of catherine coleman's argument which i think really enticed me to writing about it. the hardest thing is that a lawyer appearing before the supreme court has to do is to keep control of the argument that they want to make, because there are nine justices, eight usually because justice thomas does not often participate in oral argument. but there are at least nine very smart people who have already done some thinking about the case and are coming to the argument completely prepared to befuddle you and to drive the argument in the direction that they would very much like to do. it is important to remember that the supreme court justices do

not talk much about the case before they go into oral argument. so oral argument is really an agenda setting moment. ñrit really does shake at least the opening of the conversation that the justices will have when they go back behind the curtains and decide how they are going to vote initially on this case. so a lawyer who really wants to shape that argument, who wants to push some control on the first argument the justices will have among themselves must keep control of their argument. it was very apparent from the early point of the argument, and the book has an excerpt from justice o'connor saying i don't want you to talk about the standard, i wanted to talk about the specific issues before us involving the specific pennsylvania law that is under review here.

>> we are born to make sure the audio is turn on and we will play that clip -- we are going to make sure the audio is turned on and we will play that. >> try it now. [inaudible]

[inaudible] >> you can hear in that exchange the tension that was evident in the courtroom on that day. o'connor is a very precise kind of judge, and the court in fact, in granting review, had to rephrase the question that it was going to answer in the case , as to whether or not this specific pennsylvania statute was constitutionally valid. o'connor was pushingñi and juste kennedy was alsoçó pushing, buts you can hear in a rather deft

way when catherine colbert -- katherine coleman said i will get to your point, but i want to get backed to the standard. the argument went that way throughoutñr, and justice kenney also jumped in with a similar kind of attempt to push colbert back on to the specifics. [inaudible]

[inaudible] >> the statutory provisions are not necessarily undercut in roe vs. wade.

[inaudible] [inaudible]

>> i am suggesting to you that that is not the only logical possibility. >> the pattern that was set earlier continue. i should mention that there were two other lawyers arguing this case, and the chapter that i wrote deal briefly with them, but the performance of catherine colbert ultimately proved the worst of her choice, because she did shake the conversation that thereafter occurred among the justices. in the end, justices kennedy, o'connor, and david souter got together and fashioned a way by which the court could sustainçó> roe vs. wade, at least in substantial part, and they did indeed strike down only that one çiñiñipart, the requirement tha womanjf contemplating abortion notify her husband that she was doing so. to my mind, it is a classic

demonstration of deciding what you want to argue, going in to make that argument, and no matter how hard the resistance is to you making your argument, to holding to it, sticking to it until the bitter end, and then hoping for the best. it was a very classical performance by really talented lawyer, and to this day, a good many years later, roe still survives in the form that emerged as a direct consequence of catherine colbert's argument. thank you for including me in thisçó project. the year 2000 was also a presidential election year, so it was not terribly tough to select bush vs. gore 2000 as one of the cases to write about for

this collection. indeed, it was a case unique in the history of the country, for starters, in american politics, and in the circumstances of the supreme court. ñiobviously thisñr was of great importance. one might eveéó suggest as a political reporter, which was part of my responsibility in addition to covering the court, that the best five weeks of the 2000 election campaign were those five weeks between election day and december 12 when the court handed down its opinion in bush vs. court. then we sell laid out in front of us and without the bamboozlement of a lot of political advertising what the courts were going to do both here in washington and in the state of florida. we were commuting, figuratively if not literally, between the courts in tallahassee and other places in florida and the

supreme court. in the span of 10 days, the u.s. supreme court heard arguments related to the election not once but twice. that in and of itself is extraordinary, and this was not something that had been ripening for five or 10 or the teen years in lower courts, but was festering on the political scene only days after the election, so that not only were the public, the world at large, but the lawyers who had to deal with that and the justices who had to decide on it, all dealing in a very contemporary setting of uncertainty. what actually happened? what did those ballots that we saw people looking through represent, and what were the kinds of things that had to be judge here in the u.s. supreme court itself? added to that from broadcasters perspective was the opportunity to not just sit in the court but

then to run out in front of the court and have those tapes played back on the air, the audio. the audio was released as soon as the arguments were concluded, so no sooner had justice rehnquist uttered the words ago the case is submitted," that in moments we were able to turn around in here justice rehnquist's say "will now hear arguments in the case of bush ñrvs. gore 2000." so that unfolded and people got a chance to hear what was happening in the court. what they heard from my judgment was two extremely competent attorneys arguing, ted olson on behalf of the bush campaign and davidñi boise on behalf of the gore campaign. these were extremely accomplished, familiar faces,

once previously at the u.s. supreme court. he had been handling the arguments of the florida courts and was probably as familiar as anyone with florida law as it unfolded. what the uncounted -- what he encountered was what had become a bit of a two-track possibility in the way the court was going gore. it was either going to be an article to issue as to whether the court in florida had adhered to constitutional provisions, really a structural approach as to whether the court in florida was respecting the desires, the wishes of the florida legislature in terms of how the electors would be chosen for the

vote on the presidency, or whether there was an equal protection issue in the way everyone who cast a vote within the state of florida, but particularly in four other counties, was being judged, whether each ballot was being given that same scrutiny, the same quality of potential for being counted, because we were dealing not only with ballots that had hanging chad and dimpled chad's and pregnant chads. some balance did not have any working for the president and some might have had two. ahold variety of different ways in which the ballots were constructed from county to county, one of which was known as a butterfly ballot. what became interesting in terms

of the argument was which was the court going to go? one of the clips i would like to play is david boyce representing al gore and the democratic campaign, and as quickly as he set out to try and make an argument and one point, he was diverted by justice kennedy. >> i think that point in you can conclude that [unintelligible] the standard of this court has generally been applied in deference to supreme court decisions. >> i would hope that that bears on the standard. does that not mean that the court has to, in interpreting a legislative act, give special

deference to the legislature? insofar as the presidential election is concerned, i would think that is accountable, and especially in light also of the concern [unintelligible] >> i think that if the florida supreme court is interpreting florida law, i think the court needs to take into account the legislature does have this [unintelligible] i think when the florida supreme court does that, within the judicial interpretation that is a subject for florida's supreme court. >> there was no special burden to show some deference to legislative [unintelligible]

presidential electors, there is a big red flag up there. >> justice o'connor joining the conversation shortly after justice kennedy. may i start with beckstrom, when justice kennedy said can we begin with jurisdiction first? the reason being, he had to real target sitting on the bench in front of him, kennedy and o'connor. he knew going in that this was pretty much a 5-4 court because the court had also taken the unusual step of issuing a stay on the accounting procedures in

florida. that was done on saturday. arguments were on monday. the issuance of this day suggested there werer>iñzímá ar five boats stacked against mr. boysen and vice president gore. he was going to persuade anyone, he had to focus his attention on kennedy and o'connor. if justice kennedy said can we start here? there was only one response, and that wasñi yes, justice, let's start there at and discuss that. what essentially happened is that the five boats that ultimately decided this case, though i would prefer not to say decided the election, that was the carry over from what the four numbers resulted in, ultimately it came down to justice kennedy, justice o'connor, can and then the three much more conservative members of the court, chief justice

rehnquist, justice scalia, and justice thomas issuing an unsigned opinion for the court. the author ship later became evident that it was kennqy's. it was only because kennedy and o'connor were comfortable with the equal protection aspects, that is, is every boat being counted like every other boatñi- is every vote counted like every other vote. those of us who scrambled out in front of the court afterwards thought it was a 7-2 vote. did come down to a real question on how the ballots were being counted. there was a very short exchange between ted olson representing

mr. bush and justice souter. ñiñr>> we submit debt incorrecty interpreted [unintelligible] is completely impossible to have the issue resolved and the controversy resulted time for the federal statutory deadline. we submit that the process has changed. >> if your concern with this -- if you had latigo we might have found exactly how it would have come out, but that was not the intent of mr. olson and governor bush at that particular time. many justices will say that oral arguments don't change their opinions, but that they help them close the gaps and narrowed

some of the inconsistencies. i am not sure, but in hindsight, looking at this and listening to the arguments again just the other night, you see justice kennedy in particular trying to wrestle his way to a conclusion that works for him. it was not the more seemingly it to chronicle -- the more seemingly draconian approach it, but the weight to find that the equal protection was not being afforded every voter here, that was a comfort zone for him. >> it is an honor for me to be here as well, it was a great, fun projects to work on this book about oral arguments. it is an intense and fascinating process, and i am struck how intense it is by the fact of where we are right now. we are sitting in a replica of

the supreme court at the georgetown university law center, where the dimensions are exactly as they are in the court with the lectern the same distance from the justices as in real life. it is incredibly close, and i cannot imagine it is just a really nerve wracking experience for the lawyers. i always feel for them, and i am surprised more of them have not faded, as has happened in history. the case i picked to write about in a way is a lot less known than the others you just heard about. in a way it is the flip side of the coin from dahlia's case. in this case, there is a rookie lawyer who had never argue before the supreme court. he ended up making a spectacularly unsuccessful argument. he was totally passionate about

the facts and the background of the case, but it just fell flat and was too passionate. makes another point about the supreme court. many cases, when they get to the supreme court, are at a much more abstract level than at the lower court levels. in the trial court, the issue is the facts. did the police officer do this or not? but when you get to the supreme court, the facts often fade into the background, and the court is really just concerned about a legal and constitutional issue. that is what this lawyer forgot. just briefly to summarize, it is a first amendment case. the first amendment protect freedom of speech, but it also has been found to protect the

right not to speak are the right not to have the government force you to say something you do not agree with. in this case, it was a group of california fruit farmers, producers of vegetables and fruit in california, who every time they sell a bushel of corn or something, they have to pay a fee into a federally backed marketing program. that marketing program then pays for commercials on television to advertise the fruit in generic ways, much like the milk commercials you see our beef -- or beef. this group of fruit farmers did not like the ads that were being produced on their behalf for this marketing program. the ads were featuring varieties

of fruit they did not grow. they did not -- they did not like some of that subliminal sexual images in the ads about the luscious this of fruit. they decided to make the first amendment challenge to this program. a lawyer from fresno had been their lawyer for years and was challenging this program every step of the way. he knew everything there was to know about this marketing program. as the case got to the supreme court, he wanted to hang on to the case, like many lawyers do. some of his clients felt that this -- we are getting away from the facts, we need a really good first amendment lawyer. they hired michael mcconnell, who later on went on to be a distinguished federal judge. ñiweñi had two groups of farmer,

one sticking with thomas campion and the other going with the new lawyer. the above file briefs in the case, and the supreme court did not know what to do. they had two lawyers and only a half-hour for them to argue. actually flipped a coin to resolve this unresolvable fight between these two lawyers, and thomas campaign one. he argued the case, and almost from the outset, you could see that the first amendment issue of forced speech was of no interest to him. he wanted to relitigate this program about fruit, and he started to argue about stipulation 43 and exhibit 297, as if he was back in the trial court. there is one clip we have of how unsuccessful that gambit was.

[unintelligible] >> the 1954 act as not to leo -- does not deal with that subject whatsoever. [unintelligible]

>> stipulation #59. >> if you want to make a point, make it so we can all understand it. [unintelligible] >> you can see that he was so wrapped up in the details, chief justice rehnquist became very annoyed and told him to stop it, and he kept telling back to

stipulation bit 7. unfortunately, it just kept going in that way. he never really took on the person in the argument that was very crucial to the case. he again got so impassioned about the frouduit that his clit group, that it became a real embarrassment. we can go to the third clip where he was arguing that his clients grow green plums, and the ad really should have been about green plums. people think that green plums or underwrite and will have bad effects on people. >> if you are thinking to

yourself, you did not want to give your wife diarrhea. >> i have never seen green plums. >> he was directing it to justice scalia. he was saying why should you tell me i should not buy green plums for my wife, i have never seen a greenbaum? he was not trying for humor, but it just completely fell flat. in the end, he lost the case 5- 4, and a lot of people think that if a true first amendment lawyer had argued the case, it might have gone the other way. the faction of fruit growers who objected to thomas campagne arguing the case were so upset that they filed a malpractice suit against him.

one of their accounts was that it was malpractice for him to fail to refer the case to a supreme court specialist. i thought in a symbolic way that that really symbolized the supquñr court specialty bar had arrived. it was deemed so objectively better than a run-of-the-mill lawyer that it became the basis of a malpractice suit. the suit did not succeed. there was a settlement, but it seemed to symbolize that sometimes it really does matter to have a good supreme court advocate on your side. >> at this point, i will ask questions of our esteemed panel and we will talk a little bit more about oral arguments. all-star. dahlia. you concluded that an outsider

could prevail over a polished insider because of their passion. he said he violated the order not to use sound effects. he calls the courtroom to erupt into laughter. what is the interplay between presentation of ideas and being colorful as opposed to the ideas themselves? when you think about what is going to lead your success as an advocate before the court, how do you make a trade-off between those two different objectives? >> i think that for every story i tell, there are tend that tony can tell. anyone going into the supreme court for the first time would be ill-advised to do any of the things that michael did. one of the things that was so interesting to me, we were

really all dying watching his performance, yet it became clear that he was doing something slightly magical there. in thinking of an oral argument this year where carter philips was talking about expletives and a change in the policy about whether one were paris hilton and were going to swear briefly, whether one could be fined for that. carter phillips really is one of the harlem globetrotters, astonishing. he does not ever do a lot of flash. he is meticulously good on the argument peaciece and not one to draw attention to himself. everyone was whispering that he was going to actually say one of these expletives, because he had

done it at the court of appeals. the judges were swearing and he was wearing and everyone was swearing. going into oral arguments, the scuttlebutt was that he was just going to go in there and because like a sailor at the supreme court, and at the last minute, he did not. i think it was an interesting choice to essentially say we are not going to be transgressive here. this particular court would not have thought it added. they would have thought it massively detracted. he made a very smart choice to argue the case and not do the bells and whistles that might work at the court of appeals. the object lesson is, it really was an allied air. i don't think the one would take away from this particular case that you should go in

representing your daughter, get emotional, insult the chief justice and make everyone laughed. he pulled it off because of some perfect storm of what he was and what the case was in that moment. i really do think the lesson i took from the case is, don't be too smart. alboin and be safe and argued the case you would are -- the way you would argue in court. >> as you were describing the casey case, and catherine colbert's argument, it sounded like she was really confrontational. she was combative and really sticking to her guns. despite all your efforts to get me to deviate from these arguments, i am going to stick to my guns here. in contrast, charles' description of bush vs. gore and

his quotes from ted olson suggests that if the justices suggest they want to go in a direction, you are going to follow them in that direction. is your case the anomaly here, or how can we best understand? >> eeo catherine colbert, you know that she is stubborn. she was and remains very committed to work cause -- to her cause. he keep in mind that this was as much a political adventure as a jurisprudential enterprise, catherine knew what was on the line. it was a high risk. she was really rolling for a major loss if she either offended kennedy or o'connor. she clearly needed both of them, and from the exurbs that we played for the audience, it is clear that both of them came

into the argument skeptical of her go for broke approach. i don't think -- you could probably say it was an aberration in the sense that not many causes are that emotional. dahlia's is another case that is, but most of the time when you go into an oral argument, the issue is not quite as close as it was in this case. most of the cases are not bound to be 5-4. that is still an exception. more cases are decided by 7-2 or 6-3. when you know going into a case is likely to be 5-4, the risk is exponential. catherine understood that as a political activity, she could not do anything else.

she was lucky in this sense. no matter which way the argument went, or the outcome when, they had a political issue, because if the supreme court struck down roe, then you could make the argument that we have got to get a president who cares about reproductive rights. while it was high risk in the sense that catherine colbert may well have lost the outcome, it was not a political risk, because either way, they were going to have the kind of political argument that they fashioned going in. >> that part of casey is sort of unusual. i think there were two goals being pursued by the attorneys. are there other instances where the lawyers who are arguing the case have to go beyond the litigation that is being liberated? >> most of the time when the case gets to the supreme court, it is rare, because the court

did something like 8000 petitions a year and they decide 75. i think most lawyers understand that what they are doing is not simply getting a resolution of a fight between party a and party be. another case that occurs to me was the 2005 decision in which the court validated taking away a woman's home in new london, connecticut, so they could build a big new economic developmentñi to support a pharmaceutical giant. in that case, it was very clear that both sides went into the argument not only hoping to win this litigation between these parties, but to establish a larger principle. in that sense, i would say that supreme court arguments, given how few there are any more, given the limited scope of what the court is willing to hear, almost every case has a secondary impulse that the lawyers are going to pursue. it is not often quite as blatant

as it was in casey. >> charles, let me ask you about televising supreme court proceedings. you mentioned is that in bush vs. gore, one of the interesting things was that as soon as the case was over, you had the audio recordings being made available to the public. there is a great deal of public interest in that case. what would you say then about why or the justice is reluctant to have their proceedings televised? along those lines, what kind of impact would it have on the justices in oral arguments and the attorneys who are presenting their advocacy? >> this is a case i have argued before the supreme court. the feeling has been that the court, up until now, has been

very reluctant. it has complete authority to admit cameras if it chose to, but justice souter famously has said ago over my dead body." that will not be an issue much longer. his experience on that relates to the new hampshire state supreme court, which did have cameras, and he felt that he pulled his punches in questioning because of those cameras there, that he might not have been perhaps as confrontational, or he was just as a dent in some dimension in formulating his questions. -- just as hesitant in some dimension in formulating his questions. surly chief justice rehnquist was sympathetic to justice souter's position and said that so much