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An Interview with Neal Katyal

Neal Kumar Katyal served as Acting Solicitor General of the United States from May 2010 until June 2011, succeeding Elena Kagan, who was named by President Obama to the Supreme Court.  A graduate of Dartmouth College and Yale Law School, Katyal currently runs the appellate practice at the law firm Hogan Lovells and teaches at the Georgetown University Law Center, where he was one of the youngest tenured professors in the university’s history.

Katyal has served as counsel or co-counsel for numerous Supreme Court cases, including Bush v. Gore, Northwest Austin v. Holder, Hamdan v. Rumsfeld and Grutter v. Bollinger.  As Principal Deputy Solicitor General at the Justice Department, he defended President Obama’s healthcare bill before several U.S. Circuit Courts of Appeals.  Katyal has orally argued 17 U.S. Supreme Court cases and formerly directed the Georgetown Center on National Security and the Law.

Photo courtesy of http://www.hamdanvrumsfeld.com

Photo courtesy of http://www.hamdanvrumsfeld.com

The Politic: Can you describe what it is like to prepare for and argue a case before the Supreme Court?

It really depends on the nature of the case and what number argument it is for you. My very first argument, which was Hamdan v. Rumsfeld, was an incredibly difficult thing, both because it was my first argument and because the issues were so momentous. I had actually tried to give the argument away to a Supreme Court practitioner because I didn’t want to get it wrong.  But a couple of experienced advocates, Ken Starr and Miguel Estrada, both couldn’t do it for various reasons. There were other people who wanted to do it, but I felt like they had so many other commitments and this particular case required so much time. That was time I had, and I had been working on the case for several years at that point. I decided to do it.  Once I made that decision that I was going to do the argument, I put a lot of pressure on myself to do everything I possibly could to do a good job.

The first thing that I did was make a list of all the people in the country that intimidated me the most, and that included Dean Harold Koh of Yale Law School and Dean Elena Kagan at Harvard and so on. I flew around the country and I practiced the argument in front of all of them. I did fifteen of these. Normally you do around two practice sessions for a Supreme Court argument, but I was so determined to not mess it up that I tried to do everything I possibly could. So that was my first argument. Now as you do more and more arguments it becomes easier; you start to anticipate the kinds of questions the justices will ask. When I was in the Solicitor General’s office preparing for an oral argument–which I was doing roughly once a month–that was not my day job; it was my weekend job. During the day I had to run the office and make all sorts of decisions and help with all the other arguments. It was only on the weekends that you could prepare for your own argument.

So basically I did two weekends per Supreme Court argument to prepare. It was a markedly different thing. My first argument in Hamdan I was essentially preparing for four years, and then I went from that to preparing for two weekends per argument. Now that I’m in private practice I have more time than that, so for the two arguments I just did for the Supreme Court last month, I probably spent around 200 hours working on each one.

The Politic: Were you surprised by the Court’s decision in the healthcare case this past June?

I wasn’t surprised with the ultimate outcome upholding the healthcare law. I believe that the Supreme Court justices, like most people of my generation, grew up against the shadow of a real concern about judicial activism and the concern that the courts would be taking fundamental decisions away from the American people, which has been seen for the last few decades as profoundly anti-democratic. I wasn’t surprised that a majority of the Supreme Court said, “Look, we might or might not like this law, but this law is up to the American people.”

In that sense I was not surprised by the ultimate outcome. I was surprised by Justice Kennedy’s vote and I was surprised that ultimately the tax power argument became the linchpin of the holding. I always thought the tax power argument was very strong; we made it very aggressively in the lower court. But, I wouldn’t have thought that it would have been that alone that upheld the act. The Commerce Clause argument was fairly straightforward. Again, reasonable people can disagree about whether the law makes good sense or not, but I didn’t think that was enough to make the law unconstitutional.

The Politic: In your arguments before the Sixth Circuit you convinced Judge Jeffrey Sutton, a conservative Bush appointee, that the government can compel individuals to purchase health insurance but not, for example, broccoli. How is that exactly?

The first thing I’d say is that Judge Sutton is one of the most thoughtful judges in the country. It’s not me who convinced him; it was the power of the argument. The power of the argument was essentially that, unlike the market for broccoli, healthcare is something that all Americans will consume. It’s a factual inevitability that everyone is at risk of being in the healthcare market at any time. You could go and get unfortunately hit by a bus, or have a heart attack, or whatever.  When that happens and you don’t have insurance, then you show up at the emergency room and it’s everyone else who has to pick up the bill. So everyone’s in the market, unlike the products for goods and services like broccoli. That was the essential limiting principle that we had offered.

I do want to say a word about Judge Sutton. In an era when there is so much partisan suspicion of people in Congress and even on the Bench, think about what Judge Sutton did. Up until that point, every judge that had heard the case in the lower courts voted for the same position that the president who appointed them would presumably take on pure policy grounds. That is, all the Republican appointees had voted to strike down the law and all the Democratic appointees had voted to uphold the healthcare law. Judge Sutton was the first one to cross party lines. This wasn’t just any judge; this was a guy who’s fifty years old, who’s been on the shortlist for the Supreme Court for any number of years. I sure hope that vote doesn’t hurt him. One would hope that his vote should help him in the sense that it was a vote of integrity that took a lot of guts. But I am not sure folks will see it that way.  When you think about the genius of our founders’ Article Three of the Constitution, which says that judges are guaranteed life tenure and protection against diminution of salary, it’s a vote like that that is what Article Three is all about. It’s a vote of pure conscience even if, at the end of the day, it might be the end of a judicial career.  I think it won’t be, but the fact that it could be and yet he cast that vote I find deeply inspiring.

The Politic: You mention that federal judges have life tenure. What do you think of the practices of many states in which judges are up for election every several years?

The advantage of the Article Three system is that it creates in our federal government a group of long term key players who are there to do their conscience and to offer their best judgment — not for immediate crises at hand, but for the long term. It creates very good incentives, so I’m concerned about any proposal to try and elect federal judges.

The Politic: In 2006 you successfully argued Hamdan v. Rumsfeld before the Supreme Court, yet Guantanamo Bay is still open and its detention procedures are highly secretive. What have been, in your opinion, the practical implications of the Hamdan decision?

neal katyalThe most important point about Hamdan was not about Guantanamo per se. It was about the idea that the president can’t, at the stroke of his pen, set up a parallel system of justice with the death penalty on the line and try individuals in it. That has to be something set up by Congress. That fundamental insight transforms the entire national security landscape, because up until that point the President [George W. Bush] had been taking some actions on his own when they really should have been actions with the blessing of Congress. So it was about the structural separation of powers from one branch to another.

It certainly had any number of practical effects so that when Congress reauthorized the military commission system, they did so with many safeguards that were not in the original Bush proposal. Indeed, when Mr. Hamdan was tried and the government sought a sentence of thirty years, he was effectively sentenced to a period of time that was only a couple of months long. That was one kind of practical effect.

Another practical effect is that President Bush had argued the Geneva Convention didn’t protect prisoners of war — and not just at Guantanamo but anywhere in the world — who were captured in the War on Terror. The Supreme Court rebuked him and said Common Article Three of the Geneva Convention checks for the minimum form that everyone has to follow, including the United States, in protecting all of its detainees. It’s not that hard to meet it, Common Article Three, but the government wasn’t meeting it before and so it did require a number of changes to the way the government was treating its detainees.

That’s all for the good of the country. Our reputation in the world, in part due to the Supreme Court decision, was increased. I’d say there’s something even deeper than that, which is that, unlike in other countries in which Mr. Hamdan would have been shot for bringing his case to the supreme court against the president and secretary of defense, and in which his lawyer would have been shot, Mr. Hamdan brought his case to the highest court and won. That shows something really deep and fundamental about America, which is our founders’ view that men are not angels, people make mistakes, let’s create a system to try and self-correct those mistakes. We don’t have to resort to arms whenever we disagree with one another. We can settle these things in the courts, and when the courts rebuke even the highest person in the land, the president accepts it and he implements that judgment. You look at what’s going on around the world in other countries in which you have constitutional crises, and our founders really wisely developed a system that said, “Okay we’re going to make mistakes; let’s place into the system an understanding of that and how to fix them.”

The Politic: In May of 2011, you issued the Justice Department’s first ever public confession of ethics lapses in arguing Korematsu v. United States and Hirabayashi v United States. Was your decision controversial within the Justice Department?

I’m not going to speak to internal Justice Department deliberations, but I’ll say this: when I looked into what happened in those cases, I became deeply concerned that my office, the solicitor general’s office, made some grave errors including not presenting full records to the Supreme Court. In law school, Korematsu is taught as one of the low points in the history of the Supreme Court of the United States, but what isn’t taught is that it was also a low point for the United States government’s advocacy for the Supreme Court.

It’s easy to blame the justices because their names are attached to the opinion in Korematsu, but the justices only had to go on what the governments and the advocates had given them. And they had given them a very one-sided picture. There were some young lawyers at the solicitor general’s office and elsewhere in the Justice Department who had tried to tell the solicitor general, “Don’t file this brief. It contains lies.” Yet the Solicitor General did it anyway. I found that conduct extremely troubling for anyone to do, let alone a lawyer representing the solicitor general’s office of the United States.

The Politic: Can you comment on Fisher v. University of Texas, the affirmative action case that the Court will consider this term?

I can say that personally as a law school educator I have seen first hand the benefits of a diverse classroom. By diversity I don’t just mean race. I mean political ideology and other components as well, including geography–where someone comes from—gender, orientation, and religion. All of these things contribute to a great classroom environment. It’s a mistake for a university to single out one trait  and simply look at race as the measure of diversity. Universities across the country have realized that a broadly based diversity program that includes race among one of many forms of diversity is what contributes to the most effective classroom environment.

The Politic: After you argued Northwest Austin Municipal v. Holder before the Supreme Court, which addressed the constitutionality of the Voting Rights Act, most pundits predicted that you would lose the case, especially given the aggressive questioning by the Judges. You won that case by an 8 to 1 vote. What do you think that says about the Court?

A lot of the media commentary was critical of the Chief Justice for giving me a hard time during the oral argument. I didn’t feel that at all, being the advocate. The Chief was being entirely fair in asking really hard questions. That’s what his job is. At the end of the day, like what I said about the healthcare case, I do think the Chief Justice is profoundly influenced by the tradition of judicial restraint. So I wasn’t surprised that the Supreme Court upheld the Voting Rights Act, a landmark statute.

The Politic: Shortly after the 2012 elections, Nathaniel Persily of Columbia Law School wrote in The New York Times that the reelection of the first black president could lead the Court to decide that the Voting Rights Act is unnecessary and unconstitutional. What do you think of this line of argument?

That was the same line of argument advanced in 2009. I argued the Voting Rights Act case five months after President Obama was elected, and there was commentary before the Court that said, “We don’t need the Voting Rights Act. After all, we have an African American president.” The Court wisely looked past the election to understand that the issue in the Voting Rights Acts is not just simply who is the president of the United States, but also who are the leaders in so many other officials across the land.

The Politic: You’ve taught for more that fifteen years and worked with law students on many of the cases you’ve argued before the Supreme Court. What role have your students played in shaping your judicial and political philosophy as well as your arguments before the Court?

I’m a deep believer in having teams of students on my Supreme Court cases. So for Hamdan v. Rumsfeld there were, at my right and left hand, generations of law students who had worked with me at Yale Law School and Georgetown. The claim in the case —the thing that started the case — was written by three Yale Law School students. For each brief that was written in the trial court, the court of appeals, and the US Supreme Court, there was a team of six to eight Yale law students that wrote good chunks of the brief. For me, that is an incredibly rewarding way to be an academic, because it allows me to get the benefits of their creativity, their freshness, and for me to take on a much more hands-on mentoring role than I can in a big classroom. Unfortunately my classes in Georgetown now are all over 100 people, and it’s hard for me to get to know students the same way that I can in an intimate environment in which we’re working day and night drafting a brief.

I brought a couple of different law students to Guantanamo, where they helped me with the hearings down there, and where they met my client, Mr. Hamdan. They were integrally involved at every turn. Most recently, I argued a case last month about class actions and yet again I had a team of students that were my right and left hands; the right hand from Georgetown, left hand from Yale, or however you want to label the hands. The bottom line is that my student teams basically were the authors of that brief and contributed massively to the writing, to the insights, to the research, and so on. It’s humbling and rewarding to be able to work with such talented students.

The Politic: Yale Law School professor Akhil Amar calls you the most memorable student he’s ever had. As you may know, Professor Amar is teaching a Constitutional Law class for hundreds of Yale undergrads this spring. Do you have any advice on how to stand out?

Get Akhil drunk, I guess! In all seriousness, that’s a very sweet thing for him to say. I’m not sure if it’s at all true. Everything in my life that has gone well, including my time in Akhil’s class, was the result really of just two things. Number one, working incredibly hard. I can’t overstate how hard I worked in his class, and generally law school was a very intense time for me. Second, being a good listener; listening is such an underappreciated activity today, particularly as everyone is multitasking and doing so many different things. Being a good listener is really hard because it requires you to set aside your own blinders and really try to understand what the other person is saying, be it a professor, be it a judge, be it an opponent on the other side.

One of the most important things Akhil taught me is the value of having friends and colleagues who really think totally differently than you do. If you can spend time with them, you develop that sense of listening and of true engagement with someone; engagement in which you are not ridiculing their ideas or caricaturizing them, but understanding them head-on. You might disagree with them ultimately, or you might actually evolve in your own thinking and change your views. It goes back to what I was saying about diverse classroom. The reason why a diverse classroom helps your environment is because it forces people to confront things that they hadn’t confronted before. The only way that works is if people are really opening their minds to these other ideas and listening hard for what people are really saying and not what they think they’re saying or what they hope that they’re saying or want them to say.

The Politic: What advice do you have for students who are interested in civil rights or constitutional law?

They’re wonderful and dynamic fields. The most important advice that I have is that they pursue an area that really speaks to them and what they care about. If you’re passionate about something, you’re going to do a better job. That means sometimes not following the herd in law school and doing what everyone else does: going to a big corporate law firm, which is the path of least resistance. If you really care about civil rights and constitutional law, then you’ve got to, when you graduate, pretty quickly get into court and start developing a skillset that’s going to enable you to be a litigator. That means going to, for example, the Justice Department or something like that. I see so many law students who come into law school saying they care about these areas of the law like civil rights, but ultimately it’s just so much easier to sign up for campus interviews with the big firms and do that. There’s nothing wrong with that if that’s what people want to do, but I would urge students to keep their eye on the ball to do something that is a passion for them.

The Politic: Your name has been mentioned quite a lot on a number of websites and a number of news articles as a potential appointment to the Supreme Court if a vacancy opens up in the president’s second term. Could you comment on that?

I guess those reporters are as drunk as Akhil was!