COURT CLERK: All rise.
HARRY BLACKMUN: I think I know how anxious you
are to get the results.
[AUDIO OUT]
[LAUGHTER]
Maybe we've just decided we can't decide
and we'll all go home.
[LAUGHTER]
I've asked Judge Keeton and Judge Kearse to make,
at this time, some general comments about the argument.
And if you can bear with us just a few more minutes before
we announce the decision, we'll indulge in that.
Judge Keeton, will you [INAUDIBLE]
us what you have to say?
ROBERT KEETON: You will understand
that my first role is just to extend the suspense
for a while longer, because I'm not going to say anything
about the results.
But only an opportunity to express
my appreciation for the opportunity
to be back here again.
I've gone through some interesting experiences
recently.
Not too long ago, I found myself frequently listening
to arguments, both trial and appellate,
and trying to screen out of my mind
the substance of the arguments in order
that I could make some evaluation of the performances
and give students some useful critique, as well
as other kinds of evaluation.
And then I shifted to another job and I found myself now
and then forgetting that I was supposed to be listening
to the substantive content--
[LAUGHTER]
--instead of evaluating the performances before me.
Now I've been at that other job long enough that I've
become tutored to remember it's the substance you're
to be thinking about and not how well these lawyers are doing.
And now here I am again this evening
and I found the argument so interesting
substantively that sometimes I forgot
that I was supposed to be performing another role also.
But another feature about this experience
that I want to express is that I do
find it to be a special treat to be back
in this familiar atmosphere, where, as I remember it
so well, students were always thoroughly prepared
for every question.
[LAUGHTER]
[APPLAUSE]
Now with respect to the arguments
this evening, I wish that all performances
that I hear in that other job of mine
were up to this excellence.
Of course, I do occasionally hear some up to this excellence
because some of my former students
sometimes appear before me.
[LAUGHTER]
And in addition, there's some excellent counsel
who didn't even have the benefit of that instruction.
[LAUGHTER]
But I would be entirely candid in saying to you, as I do,
that my life would be easier in that other assignment
if all of the performances were as good as these
were this evening.
And we do very much appreciate that.
I think also when we come around to announcing those things
that you're waiting to hear and I'm postponing
by every moment longer I speak, it
is relevant to say that one of the things that makes that so
difficult to decide is that counsel have
different opportunities in a case, because of the nature
of the issues, and their difficulty,
and the way the case comes before the court and so forth.
And we do our best to make evaluations on that.
But I especially commend all four of you
because it did seem to me that you
had quite different problems to address
from your different perspectives,
and responded very well to the special features of the side
of the case that you had.
Thank you again for the opportunity of being here.
[APPLAUSE]
HARRY BLACKMUN: Judge Kearse?
AMALYA KEARSE: Thank you.
I have been judging moot courts now
for about 20 years, 20 consecutive years,
and on every occasion in which I have
sat on a panel with a real judge,
I've heard him tell the--
and usually it has been a him--
[APPLAUSE]
--tell the participants that they
are much better than the lawyers that usually appear
before him in his courtroom.
And until about a year and a half ago,
I'd never really appreciated how true that is.
And I must say that this is one of the best moot court
arguments I have heard in my 20 years of judging moot court.
It's a great pleasure to be here and to participate in these.
And it's especially good to see new lawyers coming along
who can respond to questioning.
Because after all, that's the main point of oral argument.
It's an opportunity for the judges to ask you the questions
that are really troubling them.
And the more to the point you can
be in answering the question, the greater assistance
you'll be in having your point of view adopted.
And if there's one thing that I would stress,
it's really that, that everyone making oral arguments
should try very hard to listen to the question.
And sometimes it's very difficult to do that,
because you're under a lot of pressure standing up there,
and you have to be very careful to listen
and try to figure out what it is that the judge is getting at.
Because, at least in the real world,
that's the question that's really troubling the judge.
In moot court it may not be really troubling the judge,
he may just want to see how you respond.
But it's good practice for you to respond responsibly anyway.
But in any event, I thought that this was really
an excellent argument all around.
Thank you.
[APPLAUSE]
HARRY BLACKMUN: Well, I share everything
that has been said by my colleagues here on the bench.
And I would like to pay tribute to them, not just
for what they did tonight but because each
is very distinguished in what he or she has accomplished,
and I think they are ornaments to the federal bench.
I say that without reservation for both.
[APPLAUSE]
Well, there's another old saw that's
said at moot court arguments and that
is that we're always pleased we do not
have to decide the case on the merits
and yet after the argument we might wish we
could decide it on the merits.
The cases are made close, and the arguments are close,
and by the time oralists get to the end of the line in the Ames
Competition, it's a horse race.
And as is so typical in our profession,
in litigation anyway, someone always has to lose.
But it isn't the end of the world, and I--
[LAUGHTER]
--show me a lawyer of whom it is said
that he has never lost a case, and I'll
be looking at a lawyer that has never tried very many.
I think that you will look back on this experience
as you get older.
I certainly look back on the Ames Competition of a long,
long time ago and can remember everything
that happened that night.
I share what has been said in the comparison
of your performance in other courts.
I can only say, and I know that the two judges with me
will agree, that each and all of the four of you
will succeed in this profession.
And it will be discouraging at times,
but you have what it takes and you will get along.
I rather suspect that you will never
be so bored with an actual case as you must be with this one
by now.
[LAUGHTER]
You've worked on it.
Well, a couple of things about oral argument that you've
heard.
One is the desirability of answering questions
immediately, directly.
And at least in the court on which I'm privileged to sit,
when you're down there, don't be upset
if your well-prepared argument goes down the drain.
That's a rude court, and I've told them many times it is.
They talk too much.
They ask too many questions.
They ask questions at the same time.
[LAUGHTER]
You're sitting out there in front of them, quivering,
and these nine somber, owlish figures
are staring down at you.
And you must appreciate the fact that, as Judge Kearse pointed
out, the questions often are asked because that question
troubles the one who's making the enquiry,
and he wants an answer.
He wants his trouble to be alleviated.
Or it may be something that's directed to just to so-and-so
down the bench.
You may have seen at least in one of the papers
recently the little squabble between the chief justice
and Mr. Justice Rehnquist when counsel
had enough sense to say, don't get me in between.
[LAUGHTER]
And he didn't have to answer either question,
because they were really directing questions
at each other.
I think it was Robert Jackson, Mr. Justice Jackson, who said--
and he says so many things--
that--
[LAUGHTER]
I meant that as a compliment.
[LAUGHTER]
That if the time comes when you have an oral argument
to make in a Court of Appeals before a district judge,
in a Supreme Court somewhere, and if you
don't feel that it's one of the great days in your life,
don't make it.
I think that says a lot.
And I have the feeling the four of you
tonight certainly measured up to that.
One other comment.
I enjoyed Judge Keeton's questions
because he was zeroing in with the respect from the point
of view of a district judge.
And it is so true, and I know Judge Kearse
will agree with me on this, that this
is where your cases are won.
You don't win too many of them in the Appellate
Court, the Court of Appeals, or in the Supreme Court.
You win it in the trial court.
This is when your record is established
and when the facts are determined.
I thought this case generally was a pretty good one.
It's in a developing field of law.
As you know, it's taken after the Upjohn case,
and you were instructed not to look at the Upjohn case.
I have to assume you haven't.
But that case was argued before us on November 5,
and I will say it was well argued.
It was argued just as well as you did it tonight.
Now don't be mad at me because I say that,
but it was a comfort to see as important a case as
that one argued as well as it was by both sides.
The cases I worry about are when we
have a situation where there's a superb oralist on one side
and a terrible one on the other.
A comment or two about the record.
I was amused at cert being granted on October 3, 1980.
We don't grant certs on Friday, and that was a Friday.
[LAUGHTER]
As a matter of fact, it was a day before the term began.
[LAUGHTER]
The second thing, somewhere buried in here,
are some remarks by Judge Weisner speaking of the parties
as respondent, respondent Imperial and respondent Wadde.
Both were appellants in the Court of Appeals, I think.
But then we get ourselves mixed up all the time.
I think in some respects the petitioners very effectively
and strongly argued the demerits of the control group test
better perhaps than they argued the merits of any other test.
Of course, they took the position that under any test
they would prevail.
What do you really think of the merits of this case?
How would you decide if you were a judge on this one?
Well, enough from me.
And I just say again as my colleagues have said that it's
been a most enjoyable evening.
You've done a grand job.
And in the year 2020 you'll look back on 1980.
I have taken the liberty, and I suppose it's highly improper,
but I have brought you, for what it's worth,
a full set of the appendix and the merits briefs
and the amicus briefs in the Upjohn case.
I couldn't steal a second set, but if the four of you
can share these, and if you're interested, here they are.
It might be of interest to you to see how
the professionals went at it.
And of course, you had more issues than they did,
but in any event I'll leave it here, and you can have those.
Now for the results.
I'll never forget sitting one time in moot court--
I was not presiding, thank goodness-- when the chairman
announced the wrong winner.
He announced the losers as the winners.
See if I can read my own writing.
The briefs-- I understand we are to say which
had the better on the briefs.
And we have concluded that the petitioners
have the better brief.
On the oralist, we went around and around.
That's what delayed us.
But we have finally concluded that the prevailing oralist
is Miss Kathleen Sullivan.
[APPLAUSE]
That probably means, Miss Sullivan,
that you lose on the merits.
[LAUGHTER]
So often that's true.
And I think we're supposed to determine the winning team.
And we have decided that the nod as to this
goes to the petitioners.
[APPLAUSE]
Thank you all again for a very instructive evening.
I dare not comment on the merits of the Upjohn case,
but you've taught me a lot.
Good night.
[APPLAUSE]