Silence speaks volumes

When it comes to arguing before the Supreme Court, the Justice Department seems to abide by the adage “quit while you’re ahead.”

Today Nicole Saharsky, assistant to the solicitor general who argued the government’s case in Burgess v. U.S. did just that when she used only about six minutes of her allotted half hour for oral argument.

That six minutes included a few silent pauses Saharsky took to allow the justices to jump in with questions. But the Court had few questions for Saharsky, who argued that the government properly applied a statute boosting the minimum sentence in federal drug cases where a defendant was previously convicted of a “felony drug offense.” The defendant in this case appealed the law’s application because his previous conviction was characterized by the state as a misdemeanor, even though it carried a sentence of up to two years’ imprisonment. The federal sentence-boosting statute defined a “felony drug offense” as an offense which carries a sentence of more than one year.

Although the brief for the defendant – who filed a pro se petition for certiorari – was co-authored by heavyweights like Harvard’s Lawrence Tribe, Supreme Court guru and SCOTUSBlog author Thomas C. Goldstein and leading Supreme Court litigator and Stanford Law professor Jeffrey L. Fisher, who argued today on Burgess’ behalf, the government seemed to be on the winning side of the argument, from the Court’s questioning.

Most vocal during the argument of Fisher – who used his full allotted time plus four minutes of rebuttal – were Chief Justice John G. Roberts and Justice Antonin Scalia, who often prefaced his questions with a disbelieving head shake and used words like “extraordinary” and “My goodness!”

More on arguments in the case tomorrow on the Lawyers USA website (which is newly revamped: check it out!)


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