Paper Chaser: How a Young, Self-Employed Lawyer Became the Best Supreme Court Litigator in Washington

Article excerpt

If you happened to drop by the Supreme Court session on April 26, during which the justices were hearing a rather dry case involving antitrust violations, you would have glimpsed a baby-faced young attorney with a slight build and an infectious grin step up to the lectern and begin cranking a handle on the side to raise it to the proper height. A newcomer to the court might have assumed this fellow was a clerk, or perhaps someone's intern. But the insiders knew him well: This was Tommy Goldstein, a smart, scrappy young lawyer who started arguing-cases here four years ago at 29, and who in his persistent appearances since has begun to change how litigation is done at its highest level.

Lawyers who argue before the Supreme Court often describe it as the pinnacle of their careers, at once exhilarating and terrifying. (In 1935, Stanley Reed, then representing the government as solicitor general, fainted under a hail of questions from justices hostile to the New Deal. A few years later; Reed cased into a less stressful job; he became a justice himself.) But if Supreme Court advocacy has always been the Matterhorn of the American legal profession, in recent years it has become the litigator's Mt. Everest, a challenge requiring the best sherpas money can buy: In part because more law firms want the prestige that comes with a Supreme Court practice, and in part because the shrinking of the court's docket--the justices hear half as many cases today as two decades ago--has spurred competition for the business that remains, Supreme Court litigation has become a highly specialized wade. Lawyers who want to go before the court must know everything from how to handle the lectern to what color the cover of their legal briefs must be.

Most importantly, Supreme Court specialists must know how to handle a bench that questions far more aggressively than in Stanley Reed's day. Good Supreme Court advocates know to leave their soaring rhetoric at home; they almost never get to deliver it since the barrage of questioning begins almost immediately after they begin their half-hour of argument. Those who reach this lawyerly apex are, almost to a man--and they are nearly all (white) men--those whose resume includes either a top-tier law school, work experience in the solicitor general's office, or a stint as a Supreme Court clerk. Law firms recently began dangling $150,000 hiring bonuses before the latter candidates, in the sure knowledge that they will earn their keep quickly. Former solicitors general Seth Waxman and Walter Dellinger III have walked into million dollar Supreme Court practices soon after leaving government service, and Theodore Olson, who left the position July 9, is following in their footsteps.

Into this exclusive club walked Tommy Goldstein. He had never clerked for a justice or worked in the SG's office. He earned his law degree at plebian American University, not Harvard or Yale. Yet Goldstein is already renowned among his peers and has begun to make a lot of money; too. This year, his firm, Goldstein & Howe--Howe is his wife and partner, Amy--will bill close to $1.5 million in fees. "His knowledge of the court is breathtaking," says Ronald Collins, a First Amendment scholar at the Freedom Forum and former court clerk. "One cannot speak about Supreme Court litigation without breathing Tom's name. And he has only just begun!"

A debater in high school and college, Goldstein always thought he'd be a trial lawyer. But while in law school during the 1990s, he caught the Supreme Court bug as an intern for National Public Radio's court correspondent, Nina Totenberg. (Goldstein and his wife named their baby Nina after her). Totenberg helped him get a clerkship with D.C. Circuit Appeals Court judge Patricia Wald, and that led to a job with Jones Day, a top appellate firm in Washington. Some attorneys at the firm had earlier begun a project to document "circuit splits" from around the country, issues on which different courts of appeal had disagreed. …