After 71 arguments at the Supreme Court, do you have a routine that you follow to prepare?
I do follow the same ordinary course, which is obviously to read the relevant cases and understand the record particularly well. I don't do formal moot courts. What I prefer are less formal roundtable discussions that involve some lawyers who worked on the case and some lawyers who haven't worked on the case, and to try to get their reactions. I don't need a dress rehearsal. It's fine to just kind of talk things through and hear how different people react to it, but also to get the benefit of what kinds of questions the other individuals coming to the case fresh think will be relevant to the oral argument itself.
The night before the argument, I stop working at 5 PM; I used to keep preparing and realized it's very hard to go to sleep if you have it fresh in your mind. I just stop at 5, try to do the best I can to not think about it-watch television, try to do something mindless, go to bed early, invariably wake up very early, and then go to the argument.
Do you still get nervous?
I don't get nervous the day of the arguments. You feel adrenaline, obviously. I get excited about it. I still get goosebumps when I walk into the courtroom. In fact, I get them even if I'm not going to argue. [Former solicitor general and Sidley Austin partner] Rex Lee was my mentor in this practice. He used to say this was the most fun thing you can do in the practice of law, and you should appreciate every time you're in that courtroom. In some ways, I think that probably has stuck with me.
Can you explain why you carry a buckeye in your pocket whenever you argue?
I do put a buckeye in my pocket. I'm an alum of the Ohio State University. There are two things I do that are sort of good luck. I put a buckeye in my pocket, and I go down and say hi to Rex's statue, which is on the sixth floor. Those are the two rituals I go through before I go to an oral argument.
Does one of your arguments stand out?
It's funny. The two that stand out aren't Supreme Court cases. They were the Second Circuit arguments in the [Fox Television Stations Inc. v. FCC] case, just because the case deals with fleeting expletives. [I remember] the dilemma of whether or not to actually use the expletives in open court, which I did in both instances. The judges on the panel used the same expletives. We had a very amusing series of exchanges, and that was televised, so it was sort of the combination of using expletives on TV on the issue of whether you could use expletives on TV, which I thought was, if nothing else, ironic. I was amused to get a call from my mother that night asking me where I had learned these words.
Is the dynamic on the court different now that there are more women justices?
Adding Justice Kagan to Justices Sotomayor and Ginsburg-I don't know that the gender makes a difference, so much as it continues the trend that each justice who replaces a justice is more active during the oral argument than the person she has replaced. I think that's true with everybody except Justice Thomas. Almost everybody else-I think everybody else actually-is more active than the person whom they replaced. It's gotten to the point now where in a 30-minute oral argument, you'll get 70 questions.
What has caused this change?
The first transition was obviously Justice Scalia, who was demonstrably more active than anyone else had been. Chief Justice Burger used to ask questions-and that's really the trade, because Rehnquist became the chief justice, but he was already on the court, so the switch was Berger to Scalia-that's a two or three question per argument, to a 15-question-per-argument swing. I think that tended to energize some of the other justices to be more active than they had been before then.
What was your first argument at the high court?
It was a case called [Charles Ronald] McElroy v. the United States. It was a criminal case. It was Justice O'Connor's first term on the court. It was argued in January 1982, at the ripe old age of 29 [when I was an assistant to the solicitor general]. It was actually the first time I'd ever appeared as a lawyer in a courtroom.
That's a baptism by fire. How did it go?
I won eight to one. I've been told that Justice Stevens had gone into the oral argument expecting to vote for the government and came out deciding to vote the other way, so I thought that's an auspicious beginning. Fortunately, I was able to hold onto the other eight.
Would you ever go back into government service?
There are only a couple of slots that I would want in government. I think at this point-that's one of the disadvantages of getting more seasoned-it's more difficult to take just any job in government. But for the right job, yeah.
So maybe a Solicitor General Phillips?
More likely my daughter [Latham & Watkins associate and former Supreme Court clerk, Jessica Phillips] will be the Solicitor General Phillips of the future. That's probably more realistic than me, but if it were offered, sure, I'd take it.
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