Law Scribbler

Mayer Brown associate prepares to make SCOTUS debut in politically charged redistricting case

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Victor Li

Photo of Victor Li by Saverio Truglia.

Mayer Brown associate Michael Kimberly says he isn’t that nervous about making his debut oral argument before the U.S. Supreme Court next week. After all, he’s been preparing for the moment ever since law school.

“I was a student in the very first class of the Yale Law School Supreme Court clinic, which is a joint effort between Mayer Brown and Yale,” Kimberly says. The Yale Supreme Court Advocacy Clinic, which was launched in 2006, provides pro bono representation to clients in SCOTUS cases while teaching aspiring appellate lawyers how to argue and brief cases before the high court. Kimberly currently serves as a co-director of the clinic alongside Mayer Brown partner Andrew Pincus and special counsel Charles Rothfeld, both experienced Supreme Court litigators.

“I think there’s a degree of nervousness you’d expect from anyone who’s about to argue before the Supreme Court,” he says. “There’s a lot at stake when it comes to setting the law for the entire nation. But as for the argument itself, my prior experience has helped keep me grounded.” That experience, he says, includes oral arguments at the circuit court level as well as arguments before appellate panels.

On Wednesday, Kimberly will step up to the podium at the high court and argue on behalf of several Maryland voters in the case of Shapiro v. McManus. The case is the first of two reapportionment cases the court will hear this term and could have a huge impact on future elections.

The issue in Shapiro is a procedural question, and a somewhat arcane one at that. Because of the politically charged nature of redistricting, constitutional challenges to voting maps are usually heard by a panel of three judges instead of just one judge, and the panel’s findings are automatically reviewed by the Supreme Court without the need to go through the usual appellate process. Plaintiffs file a complaint with a federal district judge, who sends it to a three-judge panel unless that judge decides convening the panel is unnecessary. The advantages of this procedure are that it’s fast and it prevents one judge from dominating or controlling the process.

“Timing is everything,” Kimberly says. “If a redistricting map is unlawful, then you have to fix it quickly. After all, you don’t want elections going on under an illegal map.”

In Shapiro v. McManus, the judge in question decided that a group of Maryland voters challenging the constitutionality of the redrawn districts had failed to state a valid claim for relief, and dismissed the case without referring it to a three-judge panel. Kimberly argues that the district court exceeded its authority. Instead, he argues that a judge can only dismiss a reapportionment case without referring it to a panel if the case is frivolous or insubstantial. That wasn’t the case here, according to Kimberly.

The voters were challenging on First Amendment grounds, and the Supreme Court has ruled in the past that citizens have the right to take part in the democratic process without being burdened or penalized for their views or beliefs. Kimberly argues that having a single judge dismiss the case defeats the purpose of the law and has resulted in unwarranted delays because his clients have had to go through the normal appellate procedure rather than the expedited process. “Congress never intended for single judges to decide these cases,” he says.

Before retaining Mayer Brown to handle the Supreme Court argument, Kimberly’s clients, led by lead plaintiff Stephen Shapiro, had gone pro se and had tried unsuccessfully to have the map invalidated through a referendum. After they lost before the Richmond, Virginia-based 4th U.S. Court of Appeals, Shapiro, who had a friend at Mayer Brown, brought them the case to help file a petition for certiorari with the Supreme Court. Kimberly notes that at no point was there any talk of benching him for Rothfeld, Pincus or any of the other Mayer Brown lawyers who have argued before the court in the past.

“This was my case from the start,” he says. “Given my past experience, including three arguments before the en banc courts of appeals, my colleagues here were all comfortable with my taking the lead.”

While Kimberly says he isn’t especially nervous going into his oral argument, that doesn’t mean he’s taking things lightly. He has spent much of the last week doing moot oral arguments both inside Mayer Brown and with Supreme Court oral advocates from outside the firm. His final moot session before Wednesday’s argument should take place at American University School of Law, where he’ll present to experienced Supreme Court advocates Irving Gornstein and his Yale clinic co-director Rothfeld. And he’ll be sure to maintain one of his pre-oral argument rituals.

“The night before an oral argument, I always stay in a hotel within walking distance of the court,” he says. “That way, I know I’ll be there on time.”

• Victor Li shares his reporter’s notebook at and on Twitter as @LawScribbler.

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