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Equal Justice, Fair Fights

10:13 AM, Jan 19, 2011 • By ADAM J. WHITE
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In a new editorial, the New York Times frets that when it comes to the Supreme Court's current business docket, too many corporations are hiring lawyers that are just too effective, experienced, and well-respected. Or, in the Times's words, too many "former lawyers in the Justice Department’s Office of the Solicitor General" are going into private practice for paying clients, rather than becoming "professors, judges or other kinds of public servants."

The Times's concerns are overwrought. First, the Times fails to note that although Solicitor General's office alums do largely enter private practice and work for corporate clients, the very same lawyers also tend to take on large volumes of pro bono cases on behalf of nonpaying clients. 

Second, and even more obvious, there is no dearth of quality among the Supreme Court bar; even non-corporate parties such as environmental groups, class-action plaintiffs, and Guantanamo detainees engage first-rate counsel to represent them before the Court.  In fact, the Times's editorialists unwittingly choose precisely such an example to illustrate their point:

On Wednesday, the court will hear arguments in a case about drug pricing, in which Lisa Blatt, a former assistant to the solicitor general, represents Astra USA, a drug maker. The company contends a health-care provider has no grounds for suing it for exceeding Medicaid price limits.

No doubt, Lisa Blatt is an excellent appellate litigator. But the Times neglects to mention who is representing the health care provider: David Frederick, also an alumnus of the Solicitor General's office, and one of the very most highly regarded Supreme Court litigators of our time.  He wrote the book on Supreme Court litigation -- literally.  Should he be nominated to a judgeship by President Obama, as some have predicted, he will assuredly (and not unfairly) be acclaimed as "Obama's John Roberts."

So with all due respect to Ms. Blatt, the Astra USA plaintiffs have nothing to fear.  Their case is in good hands. If the New York Times wants to effectively fight on behalf of its favored litigants, then it should do it the old-fashioned way: argue aggressively for "empathetic" liberal judicial activism.

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