SCOTUS spotlight: Beth Brinkmann on cracking the glass ceiling
on Dec 8, 2020 at 6:12 pm
Beth Brinkmann, the co-chair of the appellate and Supreme Court litigation group at Covington & Burling, has argued 25 cases before the Supreme Court and is one of the most experienced advocates practicing today. In the latest episode in our “SCOTUS spotlight” series on oral advocacy, SCOTUStalk host Amy Howe sits down with Brinkmann to talk about what it takes to develop that level of expertise. Brinkmann recounts her first oral argument before the court while working in the solicitor general’s office — and later, helping change that office’s hiring practices to allow more women to work there. She offers advice for lawyers appearing before the court and tells a memorable story about giving birth, winning a case, and losing her mentor, Justice Harry Blackmun, all within 48 hours.
Listen on Acast. A full transcript is below.
Intro: [00:00:00] Oyez! Oyez! Oyez! This is SCOTUStalk, a non-partisan podcast about the Supreme Court for lawyers and non-lawyers alike, brought to you by SCOTUSblog.
Amy Howe: [00:00:13] Welcome to SCOTUStalk. I’m Amy Howe. Thanks for joining us. So we thought this would be a good time to continue our series on oral advocacy at the court. We’re lucky enough to have someone who’s argued before the justices 25 times, both as a lawyer in private practice and on behalf of the federal government. Beth Brinkmann is the co-chair of the Appellate and Supreme Court Litigation Group at Covington and Burling. She’s also served as a deputy assistant attorney general in the Department of Justice Civil Division and as an assistant to the U.S. solicitor general. Beth, thanks for joining us.
Beth Brinkmann: [00:00:45] Thanks so much, Amy. I’m happy to be here. I love following all things Supreme Court on SCOTUSblog, and I look forward to chatting about oral argument today.
AH: [00:00:55] So let’s talk about oral argument. You argue a lot in the courts of appeals as well. How is your approach to arguing at the Supreme Court different from when you’re arguing in the courts of appeals?
BB: [00:01:07] There are a couple ways substantively that it is very different. The breadth of what you argue, the way in which you argue your case in the Supreme Court is just looking at broader principles, first principles, because the Supreme Court has the authority to obviously look back at its own opinions in a way that a court of appeals cannot. They’re bound by that Supreme Court precedent. And also there is an opportunity before the Supreme Court to know your audience so well. There’s hardly a case that comes before the court that hasn’t already been before the court in some way, one of those issues. Whereas on the courts of appeals, you may have a panel where a judge or two have never issued an opinion in the area you’re arguing. So there’s less ability to know your audience. I also argue in state court and those are really fun. There are a lot of different kind of procedures. Sometimes in some courts they draft the opinion before you have your argument. That’s a very different kind of argument. So, as always, the best thing is to know your audience and adjust to that forum and audience.
AH: [00:02:13] So speaking of audience, has your approach changed over time?
[00:02:18] You argued for the first time in 1994, either because of your experience and because the court has changed?
BB: [00:02:27] Yes, I would say for both reasons, the court has definitely changed. I first started arguing when Chief Justice Rehnquist was presiding and the way the arguments operate are different. He was a more rigid master of the argument time than the current chief.
AH: Yes, we have an example of that. [laughter]
BB: Also, there were other personalities on the court. You would wait for certain questions from Justice O’Connor or Justice Stevens that would really help advance or focus in on the critical issues. So you would get really adapt to that over time. And now the court is very different. I mean, when Justice Kagan is going to be asking your question, you know, it’s going to be really honing in on a principle. So your approach differs because the court has changed in that way. I would also say that personally, my relationship has changed. When you first start arguing. I had been a clerk and I was in the solicitor general’s office. So the justices were familiar with me. They know you as a repeat player, but in a different way. Now, several of the justices I either worked with or argued against or argued when they were before when they were on the court of appeals. And so it’s more of a contemporary, I mean, clearly it’s the Supreme Court of the United States. But as you well know, it’s a conversation and that’s a very comfortable conversation. So I think that has changed. The other thing I would say about my experience is the first time you argue is a survival instinct.
[00:04:04] But once you get past your first argument, you do, your experience helps you to start figuring out strategies to be able to advance your argument and really get your client’s interests before the court in a way that you can figure out in a more measured approach than your first time up. The other thing that’s very important having to do with your experience is the type of argument. When you’re in the solicitor general’s office, several of your arguments are often amicus arguments, and those are only 10 minutes. Very different than having merits arguments where you have 30 minutes, but even in private practice, you don’t always get 30 minutes because if the solicitor general is on your side, they’re going to take 10 minutes of that. So the patent case argued last year was great. It was me against the government and we each had 30 minutes. Those are really wonderful arguments because there’s enough time. I did do something that I was surprised at, the kind of this approach. I’ve been a trial lawyer, actually, and I usually speak pretty quickly. But when you’re doing a trial before a jury, you really slow down and speak in a different way, as I am now with concepts and slower. So you often do that in the Court of appeals, too. But when you have a ten-minute argument in the Supreme Court and it’s this Supreme Court where they’re just firing questions at you. It turns out nobody wants you to slow down and you start talking like this and they’re talking like this and game on. You’re right in there with them. So there’s some counterintuitive kind of developments in your style that comes from experience and the situation of the argument that you’re advancing at that time.
AH: [00:05:47] So tell us a little bit more about your first argument. You were new at the solicitor general’s office.
BB: [00:05:52] That’s right. It was back in 1994. 25 years ago, I was up on a case having to do with the federal Indian traders statutes, and it had to do with the ability of a state to impose taxes on sales of cigarettes at a reservation run by an Indian tribe but to buyers who were not Indians. This is almost a rite of passage in the solicitor general’s office to get one of these very complicated Indian law cases, because it has to do with the interplay between the federal and state sovereigns, the tribal sovereignty, membership in a tribe, non-membership. So it was very challenging, but I was thrilled to be doing it. On a personal note, I would say there were two aspects that made it even more special. Justice Blackmun was still on the court and I clerked for him and it turned out it was the only case I argued before him. Interestingly, Justice Blackmun was the justice on the court, who cared most about Indian law, actually also so I knew he’d be very into the case. He did not ask me maybe one question. The other personal aspect for me was kind of the legacy of women before the Supreme Court.
[00:07:17] I clerked for Judge Kravitch on the 11th Circuit and Judge Kravitch graduated from the University of Pennsylvania near the top of her class in the early 40s. So she was kind of a half-generation before Justice O’Connor and she had gotten a job interview for a Supreme Court clerkship at the Supreme Court and was told point blank that, you know, she wasn’t going to get it. They weren’t ready for a woman. And then she had been at the Supreme Court once at counsel table with her father, who was a legendary lawyer in south Georgia, as she, too, became. So Judge Kravitch wasn’t there that day. But, you know, I talked to her and I really felt this just historic presence of being able to go up and represent the United States before the Supreme Court. And I kind of felt that I was righting some wrongs along the way. It was also a time where we were trying to crack open the ceiling at the solicitor general and hire a lot more women, which was a big thing for us then.
AH: [00:08:12] And I know that is maybe a little bit different when you’re in the solicitor general’s office or in private practice. But what is your preparation like in terms of the number of courts that you do sort of pre-argument traditions? Anything else you want to share?
BB: [00:08:29] It has not changed that much since that first argument. In fact, the solicitor general has a policy of doing two moot courts I always do two moot courts. It’s an incredibly useful experience to have people who are fresh to your case, look at it, pose questions to you, and one is not enough. You need to regroup after the first one and then go back in there for a second moot court. I definitely have that as a mainstay of my preparation. I do that for an argument in any court of appeals also. Then I prepare questions and answers and practice some of those obvious questions and answers. I prepare a short introduction, hardly ever get to give it, but I have that prepared. It is part of the process of preparing these is helping you. I wouldn’t say memorize but absorb become mastery of the case. So these are all exercises that help you do that. The other thing that I do is I develop the key six to eight topics that are going to come up and then I make bullet points for each of those. And that has helped me develop a strategy over the years where you can then feel an ability to pivot back to your affirmative argument, whether it’s an answer to a question, whether it’s silence, then you want to know where you’re going to go next. That is a tool that I use in preparing that then helps me be able to be more nimble and agile at the actual argument.
[00:10:01] I also do a funny thing. I sometimes have a post-it that says these are my must say two things before I sit down. And it might be because those aren’t key legal arguments. But if I was, for example, bottom side and a reply brief came in and there was something in it I didn’t get to respond to, it might not be one of my main points, but I do want to make that point. I might have those there. So that’s my main preparation. There are two touchstones that I would say that sound contradictory, that work very well together. One is to distill everything and the other is to go broader. You want to distill all of those points you have, the legal analysis, what the cases say down to shorter sentences. So you can say it in an oral advocacy way that’s much more succinct than you would in a written way. At the same time, your thinking needs to be broader because you need to win that case for your client, but you have to be able to give the court comfort as to their bigger concerns about other cases and the impact that a ruling in your favor will have in a much broader way as a law that will apply in all of the circuits across the country. Do you really have to be thinking that way, even though obviously your ticket is for your client and you need to keep that at the forefront of your mind.
AH: [00:11:28] Do you have any morning of argument traditions, you know, some people like to eat breakfast in the Supreme Court cafeteria or listen to specific songs on the way to work.
BB: [00:11:38] I generally go to the Supreme Court cafeteria in the morning, I used to have to eat there every morning with the justice as a clerk, so it gives me a certain level of comfort and you kind of ease into the moment by being down in the cafeteria for a while.
AH: [00:11:55] And what do you take up with you to the lectern? And do you take a lot of notes? Some people take nothing at all. Somewhere in between?
BB: [00:12:02] Somewhere in between. The most obvious thing is you want to have your brief, actually, you have them right next to you on the lectern. I was once in a situation where someone mistakenly took my briefs.
AH: [00:12:13] Oh, no.
BB: Yes, we got them back.
[00:12:17] But that was an interesting situation. It was a moment of looking down and seeing this brown wood rather than the briefs. And it’s not because you’re going to use the briefs in your argument, except the justices may very well ask you a question particularly. And this was a statutory case. They’re going to want to look at some of the exact text. And so you need that appendix to be able to direct them to it. So that’s the most important thing to have. You do have to the briefs right there. The other thing I think take is a very thin notebook where I have those kind of tasks I’ve done in preparation. I do have my outline of my topics and the three things I would put up if this issue comes up and I can use that either as an affirmative argument or response, I do have my little. I usually know it by heart by then, and then I do sometimes too part of my preparation. I say I do a chronology of the case as I’m preparing and reviewing, reviewing briefs. You review the record. I was a trial lawyer. I believe in facts and the record. So I go through that and the case law and part of it is the history of the statute or whatever you’re arguing about, too. So I have that chronology in there. I don’t reference them, but it’s what I carry around with me the week beforehand.
AH: [00:13:36] So sort of as a I guess I don’t know if it’s a technical matter, what do you do when you’re up there and you’ve got somebody whose vote, you know, may very well not even be in play, who’s just peppering you with questions?
BB: [00:13:52] Well, you never know. And sometimes one, and I find this happens more in the court of appeals than on the Supreme Court, frankly, because the other justices want to ask questions and normally somebody isn’t going to be able to dominate in that way. But on the court of appeals, when that’s happening, as I said, you never know. I have found that it’s sometimes because the judge doesn’t want to rule in your favor and they realize they’re probably going to have to rule in your favor. In fact, that happened to me. I argued and won the Affordable Care Act case defending the constitutionality in the D.C. Circuit. And that’s precisely what happened. And it just was the judge who did not want to rule in my favor and you could hear was very frustrated by that and was kind of going through all of that during argument. But it was you know, we had very good precedent on our side and that kind of came through during that. But what you do is obviously you want to respond to the court, you want to make your affirmative argument, and you want to make sure the other judges are having an opportunity for you to address their questions. So you do try and pivot when there’s a question that comes up, you answer the question, but then if you have a related point, you can just pivot to that and say, you know, just move right into it. You don’t even have to pretend to connect it. I think so long as you are have that ready, you don’t want to stop and wait for someone to ask you another question. You want to advance it towards your point and what you think, of course, that they ask questions. Then obviously that’s the opportunity you sees to answer the questions they have.
AH: [00:15:29] So you’ve done all this incredible preparation, and then just despite that, you get a question that kind of surprises you. So I want to ask you about that, but first I want to play an example where it seemed like that might have happened. This is the argument in Cedar Rapids Community School District v. Garrett F in 1998.
Justice William H. Rehnquist: [00:15:58] I notice that the letter to which Justice Breyer referred it appears that it was the date of the injury was October 1st, 1993, and the date of response was February 22nd, 1996. Does that mean that the Office of Special Education took two and a half years to answer?
BB: [00:16:17] Your Honor. I’m not aware of the circumstances surrounding that delay. I apologize for that lack of knowledge. I do know that sometimes these inquiries come in and the Department of Education may ask informally for additional information in a particular case, I’m not sure the circumstances surrounding this, but…
Justice Antonin Scalia: It certainly shouldn’t have taken two and a half years to write such an unhelpful letter.
BB: [00:16:37] I would. I would think not, your Honor…
AH: You obviously handled that very well. But what with a little bit of humor, what other strategies do you have when you have these out of left field questions?
BB: [00:16:52] That’s a great example, Amy. That was a situation where I was asked the question before I even got to the lectern. I never got to say may it please the court. The parties had both already argued I was the amicus. So the justices were fully engaged. And it was one of those questions that was more a question of curiosity. It had nothing to do with the legal arguments. But you take it as a compliment because the justices know, particularly when you’re coming from the solicitor general’s office, that you’re ready. They can rely on you and they can ask you questions like that. So I did what you try to do in a situation like that. There was no reason for me to know that letter had been written years before. And frankly, if I had, it might have been privileged. But the answer I gave was to explain didn’t know that particular situation. But this is the kind of thing that would normally delay a letter like that. They would be seeking comments, that type of thing. That’s really that strategy for answering an unexpected question. Try and provide them your position on the facts, the law that would be considered by the court, even if you can’t speak to the particular question they’ve asked. It also was a really nice example of Justice Scalia and the court itself because at the Supreme Court other justices aren’t going to let the argument get sidetracked that way. So Justice Scalia would come in with his humor or sarcasm.
[00:18:15] And then he pointed out that having taken, I don’t know, two and a half, three years, the agency could have provided a more helpful answer because it actually wasn’t very helpful at all. So that was a nice way to get back to the regular argument. If I can, though, I have a couple just color commentary points that I think are fun. It’s just coincidence that you picked that case. That raises some personal commentary that you might appreciate. The first one has to do with the actual argument. It involved a student with a disability who used a wheelchair and a ventilator. And the question was whether the school district was required by a federal regulation to provide an aid to monitor the ventilator during school. The student, it turns out, wanted to attend the argument. He was in high school by then and his attorney talked to me about that. And I said, of course, I mean, there’s nothing better than having, he wasn’t my client. My client was, you know, the agency. But there’s nothing better than having your clients attend an oral argument. I always try and have that happen. They walk out of there realizing that win or lose, their case is being fully considered by the justices. But the practice point, I would say, is we arranged that ahead of time. The Supreme Court was very accommodating, but it’s not the kind of thing you want to show up the morning of an argument and try and arrange for a wheelchair access and the ventilator.
[00:19:48] So we did that ahead of time. But the other fun point about that case that you happened to pick was it’s one of the ones that I argued pregnant. And there were many women, I have to stress, who argued pregnant in those days. We had really worked to expand the pool of women at the solicitor general’s office. When I started, I was number 10. I was the tenth assistant to the solicitor general in the whole history of the office and Drew Days, the solicitor general at the time, asked me to help him change the hiring procedures. And we did. We changed a couple of key parts about that. And within that time I was there, we cracked the ceiling. We had six other women hired by then. So that was another nice part about this story and that kind of opening up. It wasn’t that unusual to argue pregnant then, but the last point I have to make is pretty unusual. We won the case. The Garrett F case and I found out when I was in the hospital less than 24 hours after I gave birth. So that was really terrific. But within 20, less than 24 hours, while I was still in the hospital, we also got news that Justice Blackmun had passed away, who I clerked for. So that was a 72 hours that are a very clear and precise memory in my mind. So thanks for bringing that up.
AH: [00:21:06] I almost hate to switch back to something as mundane as sort of oral argument questions, but so you’ve talked about the unexpected questions beyond the unexpected questions. What kind of questions do you find the hardest ones to answer?
BB: [00:21:25] The hardest questions are the ones you’re the most prepared for, in fact, because you know, those are going to come up. They’re the ones about the limits of your legal argument, the ones about line drawing. So the justices want to know if they rule for your client, how will it affect the broader legal doctrine? How will it impact that other very difficult case that is just past your case? But you don’t need to win that one. You need to win for your client. And those are the ones that you practice. Those are the ones that really matter. And your moot courts have helped you distill down the main points and the most persuasive way to present that to the court.
AH: [00:22:06] I want to ask you on sort of the last part of an oral argument when you are arguing on behalf of the petitioner, the rebuttal. But before you do, I want to play another clip from the Garrett EFF argument just because it’s kind of fun.
[00:22:19] And for people who follow the court today, it illustrates Justice Byron White said, you know, when you get a new justice, you get a new court or something along those lines. You know, when you get a new chief, you get a new style. And so this was Chief Justice William Rehnquist. This is you sort of trying to finish up, I think, your time at the lectern in the Garrett F argument. And then you have a question for the chief justice.
BB: [00:22:50] The circuit, um, may I finish Your Honor?
CJWR: No, your time has expired.
BB: Thank you, Your Honor.
AH: [00:22:55] That was a very different style from the current chief justice.
BB: [00:22:58] It is. Well, that is classic Chief Justice Rehnquist. He was known to cut off advocates. I kid you not in mid-syllable when the time expired, although he did not always do it. He sometimes let someone go on. But usually if he was cutting you off and holding you to that precise time, it was a good signal and it was in that case. But that really is nothing compared to a really concrete example I can give you of how he kept the trains running on time. There used to be two arguments in the afternoon and two arguments in the morning. There would be an hour break for lunch from 12 to 1. If the morning arguments concluded before noon, say, five to noon, the chief would go ahead and call the third case and have the first attorney argue for five minutes and then recess for lunch and come back and start that third argument, five minutes into the attorney’s time.
AH: That’s like the worst lunch ever.
BB: [00:23:59] Right.
BB: [00:24:01] But, you know, that was very classic, I think, in the way Chief Justice Rehnquist is also the one on his first year on as chief that took the fall conference list when they were discussing the summer long summer list. It used to be under Chief Justice Burger, kind of a two week meeting. He cut it down to three days and then he’s cut it down to one day during his term as chief. So efficiency was very important to him.
AH: [00:24:30] I never knew that about the conferences. Two weeks.
BB: [00:24:34] Yes. Yes.
AH: [00:24:36] So turning back to about a what do you generally, when you are the petitioner, try to accomplish with your rebuttal?
[00:24:43] I do two things. I determine whether there’s something I really need to specifically respond to that came up in the other side’s argument. And as I listen to their argument, I’ll write down, oh, I should respond to that. And then if something else comes up, I scratch that out and write down the next thing. The point is not to take notes of everything they’re arguing, but really to hone in. And if there’s something particular that you want to correct a nuance about or you just want to push back in a really particular way. But the other point is you need to then bring it back to your affirmative argument and the strong reason why you should win. And those are the two main goals. And I have to say, on the reasons to win, I would never have more than three points. Maybe one or two is the best. Obviously, that’s a statutory argument. You know, you’re focusing on the text and some really critical maybe structure point. If it’s a constitutional case, you’re talking about the best case law for your side and why this furthers the purpose of the Supreme Court doctrine. But it really coming back to it after you’ve made sure to answer if there’s really anything specific that you want to follow up on from the other side’s argument.
AH: [00:25:58] Sort of taking a step back and looking at the big picture.
[00:26:04] What advice would you give to someone who is arguing at the court for the first time?
BB: [00:26:10] As a legal matter, my advice is really the preparation that we’ve already discussed, by the time you get to the court, you’ve mastered your case, you’ve done your moot courts, you’re ready to go, you know your audience. On the practical side, I always suggest that an advocate try and visit the court beforehand. And even better, if you can see an oral argument beforehand, it may just be the day before you get into town a day early, and then you can see where the clerk is, how you check in, the lectern. And also you can figure out where the lawyers’ lounges is and the restroom. I like to mention that because when I first started arguing the Supreme Court, the lawyers’ lounge had a men’s only restroom. So if you were a woman, you had to go not just around the corner, but down a very long, marble hallway to a restroom where there was often a very long line, for oral arguments. And I will admit that I think probably the only time in my life I just cut the line and was very polite about the whole situation. But, you know, I couldn’t stand in that long of a line before oral argument. But those are the kinds of things that you want to know before you appear in a court. And as you know, particularly in the courts of appeals, there are all kinds of different rules about security, what you can take in, electronic devices. You don’t want to be figuring that out the morning of your argument if there’s anything you can do. Of course, if it’s a very remote city, you’ll just try to get there the day before, go early in the morning.
AH: Beth Brinkmann, thank you very much.
BB: [00:27:49] Thank you for having me, Amy. Take care.
AH: It was great to talk to you.
BB: Great to talk to you, too.
Outro: That’s another episode of SCOTUStalk. Thanks for joining us. Thanks to Casetext, our sponsor, and to our production team, Katie Barlow, Katie Bart, Kal Golde and James Romoser.