spending a lot of time working with government agencies in a much quieter way. what are market-based incentives that can help drive government officials to a more accurate assessment of spectrum? that is to say, if they are not really using it, they have to put it into some commercial plate, as well. it is just that those discussions tend to be quiet, whereas discussions with broadcasters tended to be more public. >> you probably could auction them off. . .

>> we have talked about spectrum and competition. there are a whole bunch of things we are looking at. for saving energy, had we improve adoption. we are dealing with a lot of questions. the question the specifics of how the fcc should address spectrum allocation. this is not a problem that is right in front of our face. you have to start the process

now. those questions should be addressed when you know what the market conditions are and how much spectrum your getting back. >> will we see a plan for public safety issues in spectrum? >> yes. >> when might we get more details about this plan? >> the public safety plan? >> the plan in general. >> even our critics have admitted this is the most open and transparent process the fcc has ever done. every month we have given benchmarks of where we are. it is the first-ever of stating where we are, stating what the problems are. i suspect that over the course of the month of january, people will hear a more granular version of ways for thinking about solving the problems.

that is where we have to leave it for now. i suspect in january there will be a lot of discussion about it. in february, we will release it. >> is february 17 still a firm date? >> yes. >> i hope you'll come back after february 17 and give us an update. thank you for being on "the communicators." [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> next, exurbs from our documentary of the supreme court, home to america's highest court. also remarks from attorney maureen mahoney. following that, a discussion on

political trends and events that could shake 2010. also a former cia analyst on u.s. policy in afghanistan and pakistan. >> tomorrow on "washington journal," a discussion on u.s. foreign policy. after that, a look at president obama's achievements in his first year in office would stephen hess of the brookings institute. that is live at 7:00 a.m. eastern here on c-span. >> in the mid-1990s, "newsweek named him one of the most 50 most influential people to watch in cyberspace. he has helped found a charter school in brooklyn and explained new technologies on "oprah."

>> next, encore presentations from the supreme court week's special. >> by and large, the people that cover us like their worked. as you indicate, they know our

traditions and they do a very good job. the news cycle, the interest, the attention span being what it is, they have 24 or 48 hours to make the point. we write for a different time dimension than that. it is not just the result, it is what the principle is. the press does a very good job of reporting what we do. it is a little more difficult to report why we did it. i can understand that problem, because they have that 24 or 48 hour news cycle. so they have a tough job. >> this is the supreme court pressroom. on a day when several opinions have been released from the bench. in this program, we hear from two journalists who regularly write about the institution.

lyle denison has covered the court for over 50 years, and joan has written about the highest court since 1989. >> i think all of us appreciate the law and enjoy it. it draws a lot of us who have gone to graduate school and on to law school. we sometimes do not want to break out of the school year cycle. the supreme court is the most mysterious branch to the public. they do their work in a marble building where cameras are not allowed. they are not recognizable generally to the average person on the street. they speak to the public through their opinions. in some ways, they are very

public. anything they do that will matter in your life will be down in black and white in a court opinion. yet they themselves will not be publicly announcing that before a camera. there is a real mystery to the supreme court. also, it is the law, and the law can be complicated to many people. that gives it an element of, what are they doing up there? everything is based on precedent, so their current rulings are based on rulings from years, decades, even centuries ago. that gives it a more mysterious aura than the other two branches of government. >> when you go in for a big case, one with high visibility, where the stakes are really large, where you can feel the tectonic plates of the constitution actually beginning to shift, then you would be british if he did not have an awareness are hot -- you would be brutish if you did not have a

high sensitivity to the importance of that moment. there are only about 110 who have served on the supreme court. the place is one where continuity is very important. history really does influence the way the court works. >> they take tradition very seriously in the supreme court. as fancy as it gets is when william rehnquist put those four gold stripes on each of his sleeves or wind justice o'connor and justice ginsberg wore a fancy color with their black robes. that was daring. this is a place endued with tradition. they don't like to break the decorum or what was done in the past. >> we sometimes kid that the quill pens they give to the oral advocates are exactly how they write their opinions. there are some justices who still write out their opinion in longhand and on legal pads

rather than on computers. the whole thing is set by a tradition. oral arguments go for a specific hour. each side gets 30 minutes. a white light goes on when there is only five minutes left and then a red light comes on. there are certain days they have their meetings. the court has its own rhythms. chief justice rehnquist especially did not like to have any of those disturbed. john roberts came on in 2005. he is a little more flexible on things and will let oral arguments go a little bit longer. his predecessor, chief justice rehnquist would often interrupt someone right when the red light went on, even in mid syllable. >> this is the chamber where brown forces -- where brown vs. board of education was decided. the most important decision in

our history in defining presidential power was decided in that room by human beings sitting on that bench, after having listened to argument by others. the aura of this place is always present. it does not matter how badly a given loyd is doing. and there are some bad lawyers to appear before the supreme court that are just not up to the task. there is something about the feel of the place that tells you something really important is going on here. to my mind, it is very much difference from watching a debate on the floor of the house and senate, where you realize that what may be going on on the floor at any given moment really does not have anything to do with the legislative process. is someone making a speech about how important mother's day is or how we should honor a certain

kind of animal hud's husbandry or something. everything that goes on in the supreme court is related to something important, and is part of the process that is working from beginning to end. it will result in a substantial outcome. >> i like a lot of the elements of covering the court. i like oral arguments and the give-and-take, how they respond to each other. i always describe it as one of the great field trips in washington d.c. since it is not televised, people do not know what is going to go on. the whole room is beautiful. the velvet and white marble and these two beautiful american blacks, and the justices come in in their robes. we have a very active bench these days, so those is a lot of

give-and-take. -- there is a lot of give-and- take. it is intriguing to watch. sometimes you can get clues as to how they might rule, and sometimes a surprise you when they finally issued an opinion. it is not where they appeared to be heading whenever on the bench. >> i don't think television cameras should make any difference whatsoever. there is an ongoing debate, and i suppose it is never going to end, as to whether the presence of cameras in any court changes people. i suppose that debate was a reasonable debate a long time ago, but we have had so much experience now in state courts, particularly with cameras and the court room. it does not make any difference at all. even in the federal courts where

they are experimenting with allowing cameras in. i think judges are sufficiently aware of the craft of judging, that having an observer in the process is not going to be different in terms of how it affects the process, whether or not the observer has a note pad, as i do, or a camera taking images of what the court does. that is a debatable point, i will concede that. i think judges who are aware of what they are supposed to be doing will not play to the cameras. i don't think lawyers will play to the cameras. a lawyer gets up in the supreme court, and a lawyer knows they have one task, that is to persuade five people.

that is all it takes to win, five of the nine. if you get up there at the podium and you are playing to the cameras because of the audience out there, the chances are fairly good that you will lose the focus on the five that you are trying to persuade up in front of you. if you are sitting on that bench, if you are one of the nine sitting on the bench, and you are thinking about what the audience out there looking at the camera image is thinking, you are going to lose focus on what is happening in front of you. the dynamic of an oral argument is such that you have to participate to really make it work for you. the justices use oral argument very often to persuade each other. when properly understood, oral argument is an agenda setting function. what is discussed in that one

hour of time is going to very heavily influenced the conversation that the justices are going to have when they retreat from the bench and go back into the conversation. has already started when they were on the bench. >> does it stop being a quota because it is somewhere between eight and 12, but it is a quota if it is 10? >> there is still the residual sense that somebody would react to it, that someone would ham it up. justice scalia has said that one of his reasons for opposing it is that he thinks someone would play to the cameras. among the nine justices who have been most recently sitting on the court, if anyone would play to the cameras, i suspect the one most likely to do so would

be justice scalia. he is a bit of a thespian. >> justice scalia is the most fascinating justice. he came on to this court with a different approach to the law, tied to the original intentions of the man who drafted and ratify the constitution. for many years he was alone in his view, mostly speaking to people be on the marble walls. now he has nearly a majority on the court for his approach to the law. meanwhile, he is such an interesting figure, larger with live. between duck hunting and opera watching, he is someone people want to know more about. he is very much out there in oral arguments. he will say bold, blunt things and candid, blunt things when he is out speaking to students. he is close friends with ruth bader ginsburg. they are quite opposites on the

law. she is quite liberal, he is quite conservative. they have very different manners from the bench. justice scalia is incredibly aggressive and the justice ginsberg will ask lots of questions and tends to pride herself on a certain tone of civility. they are very close pals. they go to the opera together. they celebrate new year's eve dinners together. they have deep respect for each other. when they were lower court judges and the d.c. circuit, they would swap opinions and ask each other for advice on some of the language in their opinions. other justices have formed a bridge clubs and travel together. it is a very human institution. remember, they are appointed for life, so there is an incentive for them to get along. all nine individuals very much value collegiality. they are appointed for life. they have to work together. the matter their differences on

the law, they want to get along. there were most challenged in 2000 after bush vs. gore. that was probably the biggest challenge in recent years. the differences emerge in very strong statements in their written opinions and sometimes oral statements given from the bench. they all know there is an incentive to try to keep getting along, because they have to share that building for many more years. many of these justices come and stay for 20 years, 30 years, and there is an incentive to appreciate each other's company, a matter how much they differ on the law. in recent years, most of the justices who have been appointed have been easy going and of that a tone was set that encouraged collegiality, rather than undercut it. >> when you have decided a case, you have to move on. however much you may have resented the way your colleagues on the other side

decided the case, there will be another tough case coming up right afterward. if the prevailing atmosphere in the court is one of collegiality, then you are able to have our real tussle over case, but then once it is decided, put it aside and move on. virtually everybody knows everybody else, and among the justices, it really depends on the pattern that the chief justice sits. if the chief justice once they really collegial court, he can do things that bring that about. she justice warren e. d. chief justice warren had a largely collegial court. it never seemed to end between justices black and frankfurter, but earl warren himself was a very warm person and rent a

chord that was agreeable with each other. the court under warren burger was not a happy place. relationships between the justices tended to rapidly deteriorated. there was a lot of internal resentment, and the chief justice did not work very hard at trying to dispel that. the way he ran the court at times contributed to that internal dissension, because he would play favorites in the way he assigned opinions. he would sometimes cast his vote one way in order to have control over the assignment, and then change his vote later on. he ran the court in a way that contributed to the internal division. chief justice rehnquist, on the other hand, ran a very happy

court, a very collegial court. remember that i am talking about a court in the rehnquist years that was very deeply divided among philosophical and ideological lines. at the same time, the chief justice, using that position which -- know where is it defined -- know where it is a defined that he should be the principal caretaker of the emotional state of the court -- nowhere is a defined perioit de. it is apparent that she justice roberts is trying very hard to follow the example of chief justice rehnquist in having a collegial court. he has a bit of a disadvantage because unlike rehnquist, he was

not able to establish russian ships before he became chief justice. -- establish relationships. justice roberts did not have the opportunity. he is considerably younger than a lot of his colleagues, which makes it a little more challenging for him to establish the kind of leadership potential that i think he ultimately will have. people who have known john roberts for a long time say he is no more conservative than they thought he would be. he is more conservative than i thought he would be, but he also seems to be more agenda-driven than i expected him to be. the court under john roberts is an institution that i think is

very bold about re-examining longstanding precedents. it is interesting, because a lot of the popular perception of him in the media is that he is the chief justice who wants the court to move in more incremental ways, to take smaller steps, if you will. there is that dimension to him. i think in some ways he genuinely does want to have a kind of minimalist jurisprudence. there are times when his conservative orientation, which is deep inside him, leads him to want to push the court to try to take really bold steps. >> the chief justice sets the tone in a couple of ways. the most important he has is to assign opinions. when the chief justice is on the winning side, he determines to

write the opinion for the court. that is a very important role, because that opinion will speak for at least five justices, the majority. it will also guide lower courts and the public in terms of what the law of the land is. so that is the most important role. but the chief justice also has a ceremonial position. he sets the tone. he is the one who runs the private conferences with the other justices. he is a member of other boards in town. when it comes to the actual law of the land, his vote counts as much as the newest justice. >> judge sotomayor, are you prepared to take the oath? >> i am. >> please raise your right hand and repeat after me. i, sonya sotomayor, do solemnly swear -- >> and you just as does a couple of things for the court. obviously, on the law, that is what matters.

a new justice can tip the ideological balance and change the votes in the case. that is the most substantive thing a new justice can do. it also changes the personal dynamics among the nine. imagine a group you have been a part of work someone who comes in. everyone rearranges slightly to accommodate that person's approach to the law. >> byron white used to say that each new just this changes the whole court. i think what he meant by that was that because it is a quart of nine very, very particular individuals, there is a dynamic that develops. the new justice can change the dynamic, can come in with a different attitude, a different approach. i remember justice harry blackmun said to me at one. , he was quite resentful about

justice o'connor. he said that woman came here with an agenda, and she means to carry it out. he was unhappy with per because his perception was that a new justice should come into the court and not be very busy bridgette not be very visible -- should come into the court and not be very visible for a couple of years. i recall that before the end of november, she was falling opinions dissenting from the court's decisions. a dissent from a denial or review is kind of a bold thing to do, particularly if your brain you on the court. the new justice comes into the court -- if you are brand new on the court. and you just this brings a new style of judging and writing. because there is is constantly

changing internal dynamic, the addition of a new ingredient changes the whole. it does not cause other justices necessarily to change their views, but it does open up the possibility of a kind of shifting of majorities, a shifting lot within the court. >> a new judge to happens to be hispanic will bring great diversity to the bench. when a visitor walks into the court room, there is only one african-american justice right now. adding a hispanic justice will increase the diversity there, and adding a second female voice will certainly do that, too. when you think of how america's have male and half female, to have nine justices and only one be female certainly appears quite lopsided from the reality of visitors lives. even to of the nine will not be

representative of america, but it will be more than there are now. the journalist wants to know how i knew justice -- what will the personality of be like? how will he or she decide the law? what will that individual do to the other eight justices? will she end up being someone who other justices play off of? will she play off of some of the existing justices? new justice sotomayor happens to be from the bronx. we have others up there who can give it out pretty strong. ruth bader ginsburg is from brooklyn. antonin scalia is from queens. samuel alito is from trenton, new jersey. we just wonder if we will have a little more mixing it up from the bench with the introduction of justice sotomayor.

>> that go around by order of seniority after the chief justice has set up the case. this is what we are are to decide, here is the question. then they start casting votes, starting with the chief justice. if someone is not ready to cast a vote, he or she can wait, but typically it is up to the final justice to have his say, and then once every justice has been able to speak, they might have some give-and-take among the others. that is what they do for every case as it has been argued earlier in the week. also they go through on seniority if there is discussion to be had for a case that might be up there on a petition or appeal, and they decide whether to take the case and schedule it for oral argument. no secretaries or law clerks are allowed in the room, just the nine justices. before they start, they start out with a little coffee and pastries.

they all shake hands, all around. they do that before they go on the bench and before the whole their conference. justice o'connor used to say that she just loved the idea of shaking hands with a colleague, having a human contact before they were about to disagree vigorously. after they meet in conference, they all go back to their respective chambers. just about every conversation from here on out is done in writing with a document that is carried by messenger from chamber to chamber. the justice wants to make amendments or write a note to a fellow justice about he or she might be prepared to rule, or changes suggested in language, the justice rights that down, i've set up either on the computer or has a secretary typed it up, and then it is hand delivered to another chamber. there will be occasion when a justice will pick up the phone or go into another justice's

chamber, but that is rare. they communicate by messenger. they do things the old-fashioned way. >> that is a surprise when one discovers -- if you look at the past papers of justice is that are now often available perhaps at the library of congress work out various universities around the country, the decision will process is very much a paper process, rather than one in which somebody walks down the hallway and tries to persuade each other. there are exceptions to that. in 1992, the court was re- examining row vs. wade, the 1973 abortion decision. three justices put their heads together, kennedy, souter, and o'connor put their heads together and fashioned a way by which the court could resolve that case to get it decided. that was really quite unusual to

put together a little trio that was managing the case and controlling the outcome, really. they were able to get a majority to sign onto what they had chosen to do. in most of the cases, once the justices have cast an internal vote in the conference and the opinion is decided, it is assigned. then the drafts start circulating. what happens is that the other justices will send what are called joined memos. you can account by a vote for your opinion as it is, or there may be a note that says i am going to write separately, or i will support your opinion but i am still going to write separately, or i am going to

dissent. another approach is that i will join your opinion if you make this and this change in it. that is usually done as a paper process. it is not something where the justices get together in a conference and say what do you think about it? it all comes in as a paper flow, and the person who has the task assigned of writing the opinion then decides whether or not to incorporate the changes. if it is a close case where you are at risk of losing your majority, say the preliminary vote is 5-4, and you think you will lose one of your five, then you will be much more agreeable to accepting what that justice would like in the opinion in order to hold the vote. that happens just sell them. you have to negotiate in order

to hold together your vote. if you have a seven vote majority, if one of the seven says a do not like that he did not want to abandon, but that is a boat you really don't need. it will probably be less accommodating than if it is a 5- 4. >> this is our moment. the guy from reverse is always pushing the most to get through so he can -- a guy from reuters is always pushing to get through. the supreme court public intermission office says here is the material, make of it what you will. we will make sure you have the material.

that is an enormously invaluable function. it is also nice not to have the sense that someone is trying to spin you. >> i like the pageantry, i like to hear the justice announce what is in the opinion. then i raced down the stairs to the court press area where we all have our laptops set up, and i write a first version of that story, so it can get on our internet site. essentially, you would have to take all day and then file a story that would appear in the next day's newspaper. now, readers want to know as soon as possible what the court ruled. >> my sense about the press and the court is that we are in the early stages of a profound shift

in which the press attention to the court, the press awareness of the court is going to be so much smaller over time, that maybe the american people will find the court even more of a stranger to them. the newspaper industry's decline is something that is probably not going to be reversed. one cannot imagine an economic model that will keep that medium viable or restore it to its former prominence at any foreseeable time in the future, given the changing nature of electronic media in this country. so the question arises, who will be the chronicler of the supreme court of the future?

who will tell the american people what their supreme court is, what is doing, where it is going, who is on it? it will be paying attention, in other words. i am not sure i know the answer to that. to some degree, the electronic media as is and as it will develop over time, it can take up the slack. the pressure in the electronic media for constant, 24-hour coverage enhances the importance of gravity. -- the importance of brevity. brevity can be the enemy of clarity. >> has the new media made it more difficult? it has made it more challenging and exciting. if i wrote for the next day's paper, who would care?

everyone would know it by the time they woke up the next morning and got their newspaper. what they want to know at 11:00 on the day of the ruling is how the justices ruled, and what they want the next day is something that is more analytical, that goes further in terms of reaction. >> critics have said that the press corps is essentially there on bended knee. we are part of the institution. we treat the justices as if they were untouchable gods, and that sort of thing. that kind of criticism simply misunderstand the role of the press. even though we tried to be as detached as we can be from the court as the court is from the political winds, it does not hurt, and i think it helps

enormously for a reporter who is covering the court to be aware of the answer, to have some sense, not of simply being an apologist for the court, but to be able to experience the awe of the place, the granis and majesty of -- the grand ness and majesty of the place. >> in the future, i think the supreme court might be in pace with the country on the law, maybe even head of the country on the law, as it has been at different times. terms of technology, that will probably always be a little behind the rest of us. >> a lot of people say it is a very secretive institution. no, it is not. it does most of its work in the open. as they like to say, the work comes in the front door and goes out the front door.

>> you are watching c-span to america and the courts. we continue with our encore presentations from c-span's supreme court week. >> mr. roberts, we will hear from you now. >> after punishing mr. helper with two years in prison and a $5,000 fine -- >> do you remember your first oral argument? >> absolutely. i was very nervous when i did my last oral argument as well. if you were appearing before the supreme court and you are not nervous, you don't really understand what is going on. >> you are certainly in a moment. it is all about fielding

questions and using the time strategically so that you respond to the questions. >> 8 physical movements that may be going on, it is really quite remarkable. >> we will talk to attorneys who have argued numerous cases in front of the supreme court. they will take us through the experience of oral argument in the courtroom and show how and where they prepare for this crucial one hour that can potentially sway the justices. we begin in a room just down the hall from the supreme court chamber, where attorneys gather immediately before oral argument. >> they come in and give practical pointers. they try hard to put people at ease to be before going into the courtroom. you get to meet opposing counsel if you have not met them already. it is friendly. a lot of nervous energy in

their. >> it is designed to calm down lawyers who are doing arguments for the first time, to make sure they do not tell jokes or attempt to tell jokes during their oral arguments or not refer to their familiarity with one of the justices. and that indeed they will survive the experience. they ought to see it as a place where they can make their best case and the court will hear them, and they will get a fair decision. >> we wanted to enter the courtroom prepared and ready, and both sides have an equal chance at winning the case. the attorneys are instructed to be there at 9:15 in the morning. irregulars all know to be there. sometimes you do not know your opponent. it might be new york and california. it is not just a bunch of attorneys to all hang out around the same courthouse. they exchanged greetings and are all glad to see each other. they go over the events that

will occur that day and let them know if opinions are coming down. the absences of any justices who might be reduced, answer any questions they might have, and offer them cough drops, aspirin, anything like that that they might need to make them feel more comfortable. the feedba the years, they like it very much. >> the honorable, the chief justice and is hosted justices of the supreme court of the united states. oyez, oyez, oyez. the court is now sitting. god save the united states and this honorable court. >> when you are sitting in the chair getting ready to argue, your waiting for them to come in from behind the bench through the curtains. they are called in by the marshal. it is a very formal entry, and

everyone rises to show respect. then the gavel is pounded and people sit down and the court is called into session. it is always very ceremonial. the building is majestic, and the procedures are high ceremony, very traditional. nothing informal and modern about the way the court conducts its proceedings. very, very traditional, but i like it that way. i would not change it. i have never heard and advocates say they would like to see the court proceeding modernized in some way. it just in still see enormous respect for the institution and the processes. a lot of reverence for the court. >> it is a very powerful experience. i think everyone feels it, even

people who have been before the court many, many times still get a rush when it happens. one of the lawyers on my staff, quite a good lawyer, i went to him when i was new in the office and said, how do you feel when you argue? do you have butterflies? >> he said, i do, but i decide is like playing ball. you are nervous until the first hit. after that, it is fine. >> when your first argument arrives, the uniform reaction among everyone is, i cannot believe i am here. what i remember was enormous pressure to perform. that is what i feel every time i am there. it was probably most intense the first time, because i understood that if i did not do well, i probably would not get to come back. for many lawyers, is the crowning achievement of their

career, to argue before the supreme court. i wanted to do it more than once, so it was intimidating, but it went pretty well. >> i don't know if i would call it intimidating. it creates a certain nervousness on people who appear in the court. i had a voting rights case before the court. my opponent was not particularly skilled or well prepared as an advocate. i got the sense that the court was reaching out to help him, and i wanted to know, why not me? of melodrama i won the case. one of the things i remember -- ultimately, i won the case. one had the full 30 minutes. justices held off on their questions for a while to let you get in five minutes or so of your argument, and then the

questions began to fly. when i argued under chief judge -- under chief justice rehnquist, the rhythm was quite different. he ran it in a military way, were you got 30 minutes. when you got to the end of your time, if you were mid-syllable, he would say thank you, and that was the end of the story. i had to get accustomed to that difference in rhythm. now under chief justice roberts, we are back to a more relaxed sense in the court. i think largely because chief justice roberts was an advocate before the court a number of times, and i think to the extent he is allowed, he identifies with those who are standing up and arguing cases, that maybe they should be allowed to finish their sentences before they are told to sit down. >> is important for lawyers to be nervous. anxiety helps to improve performance.

it is very much like being an athlete, and having some anxiety before the meet begins helps you to perform at your highest level. that is what you want to do when you go to the supreme level. i feel that way about other courts, but you want to perform at your best. helps with the development of a lot if the justices and advocates are fully prepared. and if you deliver a performance that will help them do your job, it will help your client when the case. unlike many other koreans, you do not really what very far. if you'd like many other courtrooms. your seated right next to the podium. you just stand up and slide over a few inches. for me is about taking a deep breath and saying mr. chief justice, may it please the court.

and then you are off, and have a few sentences that you have chosen to deliver to the court, but you will start getting questions usually within the first minute or two. >> each of the justices has their own unique style about questioning. we have some people who have deep rapid-fire style. others like to spend out long hypothetical. >> would you explain again why it was irrelevant? was that if the gun was inoperable or not? >> there are nine people up there, and i am with them, and we are talking. it is a conversation. i have no awareness of the court

room, the people in the courtroom, any physical movements that may be going on. it is really quite remarkable. it is this physical closeness, proximity. there is something about the p a system in the course that is very sensitive. from the justices, if they whispered, one could hear their questions. some lawyers have a real problem. every once in a while they look down at their notes and they forget where the question is coming from. it could be coming from any place. particularly when justice ginsberg came on, and there were two women. a person would turn and say no, justice ginsburg, and it would have been a question from justice o'connor. when justice o'connor left,

there was a party, and they gave out t-shirts that said "i am not center, i am ruth." of the other ones that i am not ruth, i am sandra." >> how do you single this out, and how are we certain there is an injury to your client that she would not have experience for other reasons? >> it is very intense. once you start, you are certainly in the moment, and it is all about justice, fielding questions and using the time strategically so that you respond to the question. you cannot persuade the justice if you don't answer what they have asked. you also have to remember that you have a limited amount of time, at most you will have 30 minutes. often the argument may be 10 or 15, depending on whether you had to split it with another party.

you have to cover a lot of ground and the time you have. while answering the question, getting across police, trying to change the subject you need to, but doing it in a way where you still feel like you have addressed the concerns that have been expressed by the justice. >> there are some questions that are real questions and the justices want to know the answer. other times they are talking to a fellow justice through you. you are like a ventriloquist's dummy. that will go back and forth and you will be pushed. one thing the justices do is take your argument and move it to the next level and the next level after that, because the court is concerned with resolving not only the case

before it but thinking about how their decision will affect similar or related cases down the road. what will be the impact of president? one of the answers that is often given -- you just cannot restrain yourself from saying that is not this case. usually one of the justices will say, we know that. so the argument goes on for a while, and one of the bad signs of an oral argument is when the questions stop. it means you have either not persuaded them or they have figured it out already and there is nothing more you can add. under the best of circumstances, it means you have been so persuasive they don't need to hear anything further from you. but then you sit down and the respondents's lawyer gets up and he or she has the job of setting

out that argument but also trying to poke holes in the argument that was made by the petitioner. >> it is not made for tv, so that answers your giving work usually not wonderful sound bites that the press would love to report and an audience would like to cheer over. it is a much more scholarly exercise than what we typically see on television. it is designed to persuade them, based on the facts in the record of the case and the language of the statute, to bring those materials to bear in a concise and persuasive way, and to do it in a very small amount of time. you have to be extremely well prepared if you are going to do well. you have to know your case backwards and forwards, better than anyone in the court room. you have to be able to recall it

very quickly and we've been into a narrative that you are giving to the court while responding to other questions. it is very challenging. they are all brilliant. americans should be enormously proud of their court. the supreme court is excellent, all the way across the bench. it is very challenging for advocates to essentially argued at that level and meet their expectations. >> does it stop being a quota because it is somewhere between eight and 12? >> a lot of people have the impression it is just a dog and pony show, what can somebody tell me in half an hour that will make a difference? the answer is that it is

probably quite rare, although not unheard of, that oral argument would change my mind. but it is quite common that i go in with my mind not made up. a lot of these cases are very close, and you go in on a knife's edge. persuasive council can make the difference. >> it would be very rare to be able to talk for 25 minutes. ordinarily you get peppered usually within the first minute or two. it used to be sometimes within the first 20 seconds, but lately they seem to be giving advocates a little more time. you can get questions from any justice at any time, and your job is to answer the questions. it is not really about coming with a prepared speech. most of the time that i spent preparing for argument is spent preparing for anticipating the questions and preparing answers i think i would like to give to those questions.

sometimes that involves thinking of hundreds of questions they might ask, even though they will not ask more than 50 or so in the course of the half hour. it is a lot of questions. they interrupt each other. there was one time when i was arguing -- i was answering the question from one justice and other justice cut in and ask another question. justice rehnquist said, let her finish her answer. in effect it was the chief umpiring for me. my reaction was as if he had said, she is worth listening to. >> in talking about whether one focuses on a particular justice, i think skilled advocates before the court

understand that that ought to be familiar with the views of the justices, based upon what they have done in related cases, and be prepared to recognize questions that actually are the results of the set of positions the justice has taken. it is not a very smart approach as an oral advocate to seem to ignore the other justices and focus physically on another justice, who may well be the pivotal justice. i don't think they like that very much. they are not then scanned. t. hin-skinned -- they are not thin-skinned. i was convinced that justice stevens was with me every step of the way. he was