Arent Fox’ Thor Hearne joined Hugh to talk about the Arizona redistricting case heard Tuesday.
HH: An unusual thing happened to one of my law partners this week, and I wanted to take a break from all the, there is no breaking news that I haven’t told you about, but my colleague at Arent Fox, Thor Hearne, argued before the United States Supreme Court in a very important case. I was talking about it with the Smart Guys yesterday. And Thor is a friend of mine, and not many people get to hear what that’s like to prepare for. So I just thought I’d ask Thor to come in. Thor, welcome, how are you, buddy?
TH: It’s wonderful to be here, Hugh. It was great this week, and it’s good to be on your show with you.
HH: I’d like you to kind of first set people up. Tell them what the case was about, and then how you prepared for it, and then what it was like standing in front of the nine making your case.
TH: Well, briefly, the case is the second case that’s coming out of Arizona that went to the Supreme Court. The first case considered whether this “independent” but in fact highly-partisan five person commission that redrew Arizona’s legislative districts could do so. In the first case, they considered whether they had the right to do the Congressional districts, and in a very heated dissent, it was a 5-4 decision with the liberals joined by Kennedy being the majority, and Justice Roberts, Thomas, and Scalia writing very passionate dissents. The commission was found by the majority, Justice Ginsberg writing the decision, to be Constitutional. This case is the second case. In this case, they not only did not apportion, or they not only did apportion Arizona’s legislature in a very partisan way, but they also violated the one person, one vote rule that we’ve all lived with for more than 50 years in this country. And what they did is they put in certain districts that are Democrat districts that had dramatically fewer people in them than they did the Republican districts, meaning that the Democrat voters had much more weight, and had more districts, and they were unfairly apportioned. That was the case that we argued yesterday, or…
HH: Now Thor, I want to talk about, for the benefit of the lawyers and the families of lawyers out there, I’ve argued before a Circuit Courts of Appeal before, but I’ve never argued before the Supreme Court, nor do I ever intend to. It’s not my specialty, and you know, I believe in people who are specialized appellate advocates doing that, like you. How much preparation time goes into, I don’t know how much time you had in front of the Court, 15 minutes, 30?
TH: We had a total argument, total went for a full hour. We split our time with the Attorney General of Arizona. We were on the same side. So the period of time I was actually arguing was more than 20 minutes. But as you know, just to get to argument, you have to go through extensive briefing and written argument that really stands the course of about two years.
HH: And so those 20 minutes, what do you, what’s the feeling like when you’re just sort of, like people asked me if I was nervous for the presidential debate, and I said no, I’m too busy to be nervous.
HH: I’ve got too much going on. Is that the same situation?
TH: The truth of it is it feels exactly the same as an argument that you would have in front of another court, particularly a Court of Appeals. It’s just that you have now more justices, you have nine of them asking you questions, and they have names like Scalia and Roberts. But the truth of it is by the time you get there, at least for me, I felt I knew the arguments. You know, we’d not only written our briefs, that we’d had moot courts preparing for it, and I think you know, that certainly, anybody who gets to the Supreme Court should be highly-prepared by the time they actually start their argument. And I feel certainly everybody that argued on Tuesday was, and I certainly felt that it was a good chance to interact with the Court.
HH: Now we know that Justice Thomas rarely if ever asks a question. He didn’t at your argument on Tuesday. But how many of the other eight did you interact with in 20 minutes?
TH: Every one of them.
TH: And you know…
HH: That’s unusual.
TH: It was a very lively, it was a very lively discussion right out of the box.
HH: And who hit you first?
TH: Kennedy and Ginsburg hit me really quickly. One of the remarks that seemed to get the most traction was when Justice Ginsburg, who was, who again upheld the Constitutionality of this commission, was essentially defending her earlier position by saying well, look, they didn’t get that much of a partisan advantage from the Democrats, because the Republicans still control the Arizona legislature. So therefore, what are you complaining about? Well, my response was that an incompetent gerrymander is still a gerrymander, because you’re diluting people’s votes. And that sort of changed the tone of her direction, I think, and then it went over to Justice Kennedy after that, and then Scalia was very active as well as Chief Justice Roberts.
HH: And what was the most surprising question you were asked?
TH: I wish I could tell you that any of them surprised me. I think we anticipated almost all the questions that we were asked. And you know, Justice Sotomayor asked some questions that I didn’t think were terribly on point, but there was nothing of a surprise about that.
HH: And so, Thor Hearne, now you sit back and wait, and Arent Fox sits back and waits, a source of enormous pride for the firm that our guy was up there arguing and all that. How long do you expect it will be, the last week in June sort of deal?
TH: I think it will. I think this case will probably come down in tandem with the other case we argued on Tuesday, which was the Evenwell case out of Texas, which was also redistricting.
HH: And so all the way until June? So you just put it out of your mind and go back to your practice and argue other cases in front of different places and try not to think about it?
TH: Well, there’s nothing else I can do about that. It will be interesting to see from any of the other cases the Court hears if they give us any hints. But that’s always reading tea leaves. So as a practical matter, it’s just onto the next case.
HH: And so, Thor, when you pack up your bag and you leave, what do you do with the morning suit? I don’t even know if you rent one or what, because you’ve got to appear in morning suit for the Court.
TH: Well, the Solicitor General does with the full swallowtails. I was just required to have my normal Brooks Brothers.
HH: Oh, good, so you don’t have to go back and turn it in. I didn’t know that it was just the SG.
HH: And so that’s good. Did you go out and have…
TH: I was thinking of getting one of those tuxes like I did in prom in high school, but those powder blue tuxes probably would stick out a little bit at the Supreme Court.
HH: Oh, my gosh, please not. And last question, they release recordings of these. Have you already listened to yourself?
TH: The recording comes out tomorrow, but I’ve seen the written transcript, and I feel good about where we are on that.
HH: Thor Hearne, congratulations, always fun to hear first person what it’s like to do something that most lawyers and most law firms never even get close to doing. Congratulations, Thor, I hope we get a good result for the client. I appreciate you spending some time with me. His real name is Mark Hearne, but we call him Thor. He carries a hammer around, too. It’s really kind of unusual.
End of interview.