By Sean Conway '09
Executive Editor

“I speak at a number of law schools throughout the year, but I always enjoy coming to Virginia Law because of the great beer selection at events,” quipped Tom Goldstein, opening his remarks to students and faculty in the Class of 1950 Dining Area on Tuesday, August 26.

Goldstein, co-chair of the litigation and Supreme Court practice at Akin Gump LLP, visited the Law School to share his insight into the highest court in the country.

The wide-ranging discussion, sponsored by the American Constitution Society, touched on a variety of topics, including a look back at the Court’s last term, concerns about the future of the Court, and SCOTUSBlog, the wildly successful Supreme Court blog which Goldstein co-founded in 2003.

Goldstein first shared his experiences as a law student and young lawyer, mixing anecdotal humor and serious advice for the aspiring attorneys in the audience. After failing to find a paying job in the summer after his first year of law school, Goldstein settled on finding an unpaid internship. “However, even finding an unpaid internship was difficult for me,” joked Goldstein.

He eventually did latch on as an intern for National Public Radio’s legal affairs correspondent Nina Totenberg. “I was able to work on some fascinating projects at NPR with fascinating people,” said Goldstein. “I soon realized that one of the most valuable resources a law student possesses is free time. The free time I spent at NPR opened numerous other doors for me in my career.”

One such opportunity lay in the niche field of Supreme Court statistics. While at NPR, Goldstein discovered that there was no organization that kept an up-to-date compilation of Supreme Court statistics, including the voting patterns of the Justices. This prompted Goldstein to fill the void. Soon, within a few hours of the final session of each term, Goldstein released a compilation of that term’s voting statistics.

It wasn’t long before reporters from around the country were relying on Goldstein to provide analysis of trends in the Supreme Court. “This helped establish me as a so-called Supreme Court expert,” said Goldstein. “The next thing I knew, Stanford and Harvard were calling me to run their Supreme Court Clinics.”

The second resource that law students should use to their advantage, according to Goldstein, is the ability to network and build relationships. “Nina [Totenberg] helped get me my first two jobs out of law school,” shared Goldstein. “Later in my career, Larry Tribe called 17 of my references, including many people I had worked with at NPR, before allowing me to help write one of his Con Law treatises.”

Goldstein also discussed in detail his Supreme Court practice, which has allowed him to argue 18 cases before the high court. “Arguing in front of the Supreme Court is a lot like going to law school,” analogized Goldstein. “First-year is very difficult, second-year is less so, and I’m not sure if I showed up for my third year.”

Despite losing his first case before the Court 9–0, Goldstein says he has improved his ability by concentrating on two tenets of oral advocacy: the art of the possible and relative advantage.

The art of the possible refers to realizing what is possible and what is not. “I am not going to argue the merits of Roe v. Wade to Justice Scalia, because I am just not going to be able to change his mind,” he said. Instead, Goldstein said he focuses his argument towards one or two justices that he thinks he has the best chance of winning over.

The second tenet, the principle of relative advantage, instructs attorneys to use the limited time they have in front of the justices to tell them something they don’t already know. “You are only wasting time if you are repeating facts that everyone knows,” said Goldstein.

Goldstein also shared some interesting insights into the future of the Court. He predicted that regardless of who wins the election this November, the Court will shift to the right with the impending departure of 88 year-old Justice John Paul Stevens. According to Goldstein, even if Obama nominates the most liberal person under the sun, losing the leadership that Stevens supplies­—and his ability to convince conservative justices to vote with the left—will result in more 5-4 conservative decisions. “On the other hand,” joked Goldstein, “if McCain wins, the world ends.”

On a serious note, Goldstein said, “In the past four election years both sides have said that the outcome of the election will determine the fate of the Court. While that was not true in the past, it will hold true for the 2008 election.”