A debate was started amongst the literati over at  Volokh Conspiracy as to the miserable failure of competency in the criminal law realm when it comes to winning the Big Game (that’s the United States Supreme Court who might confuse it with the Patriots vs. Colts game this coming Sunday).

Orin Kerr lays out the problem this way:

 I would guess that’s the major problem in criminal defense cases. Lazarus states at the top of page 95 that criminal defense lawyers sometimes decline assistance from Supreme Court experts, preferring to “go it alone,” and that this can lead to a major gap in advocacy quality between the government and the defense. But the underlying problem is that the clients will tend not to know any better. A young and uneducated criminal defendant serving 30-to-life in a maximum security prison isn’t likely to be a specialist in appellate practice. He isn’t likely to know that he should ask his trial lawyer to step aside and find top-notch appellate advocates out there eager to represent him for free.

So the loaded question is, who’s more ridiculously obstinate and ignorant, us or our clients?  No objections here, so sit down and save it for the real court.

Clearly, the debate is loaded against us.  By the lawprof’s calculations, there is a small cabal of lawyers qualified to bring cases before the Supreme Court.  They “know” the secret handshake.  We don’t.  They “know” the secret password.  We don’t.  They are big-time SCOTUS lawyers.  We are . . . mere lawyers.

Is Orin Kerr right?  While there are many criminal defense lawyers who will do the occasional appeal, and do it poorly, in the ordinary course of practice, is even the best among us out of his league when it comes to the Big Game (see above).  Is there no one since Thurgood Marshall who can command the respect of the Justices (and, if I understand Orin correctly, the more important law clerks who gate-keep their bosses)?

Orin notes how big corps are able to hire the big guns to steer their cases through cert and into the Supreme Court Reports.  When it comes to our kind of client, however, these same Mandarins will take the case for free just for the glory.  Why are we so pig-headed that we won’t use them?  After all, these are the Big Guys. 

One reaction to Orin’s post was how someone becomes a member of the SCOTUS cabal if it’s wrong to argue a first case.  This is, of course, the perpetual conundrum of how to get a credit card if you don’t have any credit.  The difference here, unbeknownst to the academics, is that few of us will ever get a second shot to argue before the Supremes, so that our first (and only) effort is not a prelude to future greatness, but our one chance to prove our mettle.

Perhaps there is a middle ground that Orin has missed.  Perhaps the problem is not that some lawyers have eschewed the cabal, but that they just aren’t up to the task on their own.  Other lawyers, who have substantially more experience before the Circuits, state high courts, will do better for the same reason that anyone does better, more experience.  His point, that pig-headed criminal defense solo-type lawyers are willing to sacrifice their clients and the state of the law for their one shot at glory even though they lack the experience and skill necessary to make an adequate showing, may have some merit.  Just not as much breadth as he thinks.

Full Disclosure:  I’ve never argued a case before the United States Supreme Court.  I would like to though.  On the other hand, I’ve argued cases along with co-counsel who happened to be law professors at Tier 1 Law Schools.  I wasn’t impressed.  But I don’t mind them riding my coattails.  They probably need more experience.