For most of the 231 year history of the Supreme Court of the United States, the only way one could hear an oral argument at the time it occurred was to be in the courtroom or perhaps in the building housing the court. The Supreme Court moved into its current building in 1935.
Beginning in 1955, the Court began making audio recordings of oral arguments. However, the recordings from a given Term of the Court were not available to the public until the beginning of the next term.
Since 2010, audio recordings of arguments have been available to the public at the end of the argument week, usually on a Friday.
On May 4, 2020 that changed. At least for now, audio of the arguments is available to the public at the time the arguments are made. (WW listened on CSPAN.)
The first argument was in the case of U.S. Patent and Trade Mark Office vs. Booking.com. In short, the USPTO refused to register the mark, Booking.com sued. The lower courts reversed the USPTO and the USPTO appealed to the Supreme Court.
The USPTO was represented by Erica Ross, Assistant to the Solicitor General of the United States. Booking.com was represented by Lisa S. Blatt, a partner in the law firm, Williams & Connolly.
This case marked a number of “firsts.”
Because of the pandemic, the Justices were not in the Supreme Court Courtroom or in the building, nor were they together. The entire proceeding was held by telephone.
Erica Ross – The Assistant Solicitor General was in her office at the Justice Department.
Lisa Blatt – the lawyer for Booking.com was in the living room of her home.
Ordinarily, either lawyer, has about 2 minutes to make their case before one or more of the Justices starts asking questions or making comments, in no particular order. In this new situation, the Chief Justice called on the Justices in order of their seniority starting with Justice Thomas who surprisingly did ask questions.
This was the first time that Justice Thomas asked a question since March 2019, breaking at that time a three-year silence which was preceded by a 10-year silence from the bench.
Blatt was arguing her 40th Supreme Court case, more than any other woman in the history of the United States. Her record to date is 36 wins, 2 losses and now 2 cases that have not been decided.
Each of the lawyers arguing the case had clerked for one of the sitting Justices: Ross clerked for Justice Elena Kagan while she was a Justice and Blatt clerked for Ruth Ginsberg while she was still on the D.C. Court of Appeals.
My friend Bob Barnett, a senior partner at Williams & Connolly, agreed to introduce me to Blatt. Bob told me, “Lisa is an Historic Legal advocate. We are so proud to have her back at Williams and Connolly and so admiring of all she has done and all she continues to do – to advocate, to mentor, to lead, and to win.” We talked – on the telephone of course – and Blatt agreed to being interviewed – on the telephone – for the next issue of the Washington Watch.
This is another “first”. In the 181 issues since it began in 1987 the Washington Watch has never profiled any person.
Who is Lisa S. Blatt?
Age 55, Married, two children
1989 – Graduated from the University of Texas Law School, summa cum laude
1989 – 1990 Clerk for Judge Ruth Bader Ginsberg, U.S. Court of Appeals, DC Circuit
1990 – Associate, Williams and Connolly
1993 – Office of General Counsel, Department of Energy
1996 – Office of the Solicitor, Department of Justice
2009 – Arnold & Porter, Head Appellate & Supreme Court Practice
2019 – Williams & Connolly, Head Appellate & Supreme Court Practice
In preparing for my “meeting” with Blatt, I asked two people to share with me the questions they would like to ask to go along with those I planned to ask. (This resulted in three generations of questioners.)
Heidi S. Alexander, age 39, married, three children, Director of the Massachusetts Supreme Judicial Council Standing Committee on Lawyer Well-Being. (my niece)
Max Feinleib, age18, recent High School graduate who will attend Northwestern University in the fall. (my grandson)
The following are the questions put forth by the Washington Watch, Heidi and Max, and answers from Lisa Blatt.
Wash. Watch: Why were you and Erica Rose chosen to participate in the first Supreme Court argument giving day and date telephonic access to the public while Court members were not in their Chambers?
Lisa: I really don’t know. It might be that they wanted a “fun, accessible” case and perhaps it helped that the case involved two female advocates. Only 12% of the cases argued this Term were by women. It was certainly a good opportunity to showcase Erica Ross the Assistant Solicitor General.
WW: How often have you heard a question from a Justice that you had not heard or considered during preparation for the hearing?
Lisa: On many occasions but not recently. The latest was probably around my 26th argument before the Court. I was asked a question to which I said, “I don’t know” – then Justice Roberts offered an answer, and I gratefully replied, “that sounds right to me.”
WW: How many lawyers are in the appellate group at Williams and Connolly which you head?
Lisa: Around 8 or 9 lawyers. The three top partners in the group are women: myself, Amy Saharia and Sarah Harris. Sarah Harris was in the Department of Justice when I invited her to come with me to Williams and Connolly. I had worked with Sarah when I was at Arnold and Porter. The associates in the group are a mix of women and men.
WW: Do you have a view as to whether the Court will continue to allow day and date audio of oral arguments once the Court is back in its building?
Lisa: Many folks say that as soon as they can, they will go back to the old way, but I think there is no way they will go back. It is great to have the arguments live and I don’t know why you would wait until Friday to make the arguments available.
WW: Why do you think it is that Justice Thomas seems to have found his voice in this new setting. When he asked a question at your hearing it was the first time he had asked a question since March 2019.
Lisa: The format works well for him. The process is very orderly which he likes. He appears to be having the time of his life in this group of hearings. I have always known he was engaged because he and Justice Breyer frequently chat and chuckle during the arguments. Justice Thomas has stated that he thinks the Justices talk too much and do not give the advocates enough time to answer. And because Justice Thomas is so senior, his questions set the stage and framed the issues of most, if not all, of the cases this month. In my opinion, he and Kagen stole the show with their crisp and incisive questions and their great telephone voices.
Heidi: Arguing and preparing to argue before the U.S. Supreme Court must be extraordinarily stressful and time intensive. How do you manage your own stress and the stress of your team to ensure that you preform your best and do not jeopardize your well-being?
Lisa: Part-time has been critical. I don’t let work overtake my life. I don’t feel passionate about working and I don’t like to work around the clock. The time I spend doing things outside of work makes me more effective at my job and helps me keep perspective. I love doing other things: music, shopping, coaching debate, and now teaching college and law students.
At the end of my life, I know I will not be saying if I only had one more dollar or if I only argued one more case, if I only had a certain job; rather, at the end of my life, I will be thinking about the relationships I made.
Heidi: Compare your first argument with this most recent argument. Other than the fact that it was held remotely, what has changed? What lessons have you learned? If you could go back, what would you tell your young self?
Lisa: At the beginning I was very insecure. I was just trying to get through those arguments without making a mistake. I became more confident and found my “argument” voice around argument number 14. As to regrets both personally and professionally, I wish I had stood up for myself more often and earlier in my life.
Heidi: How can more women join ranks of firm leadership and achieve gender equity in law practice? How can we get more women to argue before the U.S. Supreme Court?
Lisa: The numbers right now are appalling. Around 88% of Supreme Court arguments are presented by men. This reminds me of a remark by Judge Srinivasan, “it is hard for people to become what they can’t see.” I think we would see more female advocates if over half the Court were women. So for starters, we need more women Justices. Think about the last six appointments from the last 3 Presidents: Although Presidents Bush and Trump picked outstanding Justices, they nominated 4 white men, all of whom were raised Catholic. Not much diversity there. President Obama, on the other hand, picked two women: Justices Sotomayor and Kagan. I was so happy to see that the Court picked the first case ever streamed live to be a case argued by two women. It was a great thing for lawyers, law students and aspiring law students to see.
Heidi: What does it take to win a case in the U.S. Supreme Court?
Lisa: You need to kill yourself to win or die trying. Supreme Court cases are a zero-sum game. There is one winner and one loser. I have often said to myself someone is going to die, and I do not want it to be me. That thought motivates me. I also think you have to let yourself fall in love with your client and not be afraid of becoming too emotionally attached to the case. I tend to take my cases personally. If the shoe were on the other foot, I would want a lawyer who cared as much as I do.
Heidi: How did you get where you are now? What challenges did you face and how did you overcome those challenges?
Lisa: I learned to appreciate that it is ok to be rejected and feel disappointed and humiliated by failure. These experiences are inevitable, normal, and just part of life. The key for me was not to let my failures define me. If I fail at something, I try to not dwell on it.
Heidi: Do you find meaning and purpose in your work? Are you satisfied with your career?
Lisa: Yes, in that I am in the precise place where I belong and doing the precise thing I was destined to do, being an advocate at Williams & Connolly.
Heidi: What advice do you have for young female litigators?
Lisa: Don’t let failure define you. You can decide that you missed an opportunity…don’t dwell on it.
Max: How many cases did it take before the feeling of “OMG, I’m in the Supreme Court!” wear off? Has it worn off?
Lisa: It never wears off.
Max: What legal issue are you most passionate about?
Lisa: The First Amendment. In terms of cases, I get most passionate if I think my client is being bullied or being treated unfairly…I get very exercised.
Max: What do you see as the key for you winning all your Supreme Court cases?
Lisa: Treat it as the most important thing in your life…someone’s something is on the line.
Max: What is the relationship like with the opposing lawyer? Do you communicate at all before or after the case? Are there a couple of lawyers that you have gone against many times and have developed a relationship with?
Lisa: I like my opposing counsel generally. For instance, I am very friendly with and very much like Erica Ross, who was the opposing counsel in the Booking.com case.
A lawyer that I met as my opposing counsel is Jay Lefkowitz, a partner at Kirkland and Ellis. I was blown away by his argument style, talent, and skills. It’s hard for me to think of a lawyer I have more respect for.
WW: I am told that you are known for your colorful language.
Lisa: I like to say things that are memorable. I think rhetoric can often persuade and be a way to connect with people
WW: To end this profile I am including the final paragraph from an article entitled “Reflections of a Lady Lawyer” written by Lisa Blatt and published in a special joint law review issue sponsored by the law reviews from the sixteen “top” law schools in the country. This issue commemorates the first time in history that the Editors-In-Chief of each of the sixteen sponsoring law reviews was a woman.
“I end with a word to any Justices, Judges, clients, and lawyers in management who read this: please do more to hire, support, and encourage talented women who want to work. Women don’t look or talk like Perry Mason, and you don’t want us to. We often are more creative, smarter, more persistent, and harder-working than men, and we actually win cases. So call me a Lady Lawyer. Just don’t underestimate me in Court.”