Fireside Chat with Former Acting Solicitor General Neal Katyal

Circuit Judge Jacqueline Nguyen sat down for a robust fireside-style conversation with appellate luminary and legal scholar Neal Katyal, now a partner with the Hogan Lovells law firm and a professor teaching national security law at Georgetown University Law Center.  A Yale Law graduate, General Katyal clerked for Second Circuit Judge Guido Calebresi and Supreme Court Associate Justice Stephen Breyer before joining the Justice Department and serving in the Office of the Solicitor General, and ultimately as Acting Solicitor General during the Obama Administration.

During their chat, Katyal addressed many subjects ranging from his first Supreme Court argument to his views on term limits for the justices.

Over the course of his extraordinary career, he has argued more than 50 cases before the Supreme Court, but he did not plan to become a lawyer and, after becoming a lawyer, he did not plan to become a Supreme Court advocate.  And, much to the dismay of his parents, he did not want to become a doctor.  Although he got accepted to medical school, he chose to go the law route instead.  His parents never got over it.  Even after they met Justice Breyer, he asked his parents, “Is it okay that I’m not a doctor?,” and his mom answered, “I’m not sure.”  (However, Katyal did marry a doctor, so now they do have a doctor in the family.) 

The first case Katyal argued before the justices almost 20 years ago, Hamdan v. Rumsfeld, 548 U.S. 557 (2006), was while serving as a law professor.  He represented Osama bin Laden’s bodyguard and driver, Salim Ahmed Hamdan, in the trial court and then on appeal, before the D.C. Circuit.  It was Katyal’s first D.C. Circuit argument, and then-Circuit Judge John Roberts sat on the three-judge panel that heard the appeal.  (Incidentally, it was only days later that Roberts would be nominated to the Supreme Court, and decades later Katyal would assume the position formerly filled by Roberts as head of the Hogan law firm’s appellate practice.)  After the justices agreed to hear the case, Katyal thought it would be important for an experienced Supreme Court advocate to present the oral argument, especially given that he at that point never ever argued a Supreme Court case.  He called Ken Starr, but he declined.  He then asked Miguel Estrada, and he also declined.  Eventually Katyal decided that he would deliver the oral argument, preparing himself through moot courts led by then-Harvard Law Dean Elena Kagan (who Katyal would later succeed as Solicitor General), Professor Larry Tribe, and others.  He also hired an acting coach, who taught him that oral argument is really just a conversation between two people.  He credits his work with the acting coach for giving him the confidence to drop the notepad and make eye contact with the justices during oral argument.  Katyal’s preparation paid off—he won the case, with the Court’s holding 5-3 that military commissions set up to try detainees at Guantanamo Bay violated both the Uniform Code of Military Justice and the Geneva Conventions ratified by the United States.

Katyal called the case a “good illustration of what the judiciary is all about—on one side of the courtroom, you have a big corporation, and on the other side, the little guy.  But if the little guy has a good argument, he can win.  Similarly, the most hated man in the world not only can sue the most powerful man in the world, but he also can win.”

He feels a sense of obligation to represent those who do not have the means to access outstanding counsel.  The late Ted Olson came to Katyal’s defense when Katyal faced an outlash of criticism over his representation of Hamdan.  Olson wrote a piece in the Legal Times explaining that this is what lawyers do, and that people shouldn’t criticize the doing of the job.  Katyal noted that he did the same for Paul Clement when Clement argued the Defense of Marriage Act case.

How does Katyal prepare for oral argument, and what are his rituals?  He makes a binder with key materials from the case and answers to possible questions he may be asked by the panel.  But he calls his binder a “crutch,” as he carries it with him to the lectern but rarely resorts to it.  He wears a necktie that his mom gave him.  He wears a bracelet that his late dad gave him.  He likes to explain his case to his kids, a pre-game exercise that he finds helpful; if his kids can understand the case, then he’s off to a good start in hopefully persuading the justices during “the real thing.”  Back when he argued Hamdan, his kids were the ages of 5, 3, and 1.  Now they’re in their 20s, but he still engages in the exercise with them.

How does he interpret the Constitution?  Katyal describes himself as an “originalist.”

What does he think about term limits for the justices?  He’s in favor of the concept and would support 18-year term limits for all justices because that’s the average tenure of a justice on the Court.  He reasons that, at the time of the nation’s founding, life tenure meant something very different from what it means today in terms of life expectancy.

Does he think the Court has become political?  Katyal does not view the Court as acting politically.  He sees the Court’s decisions based on law.  That said, he laments the Court’s decision in the Trump immunity case this term because, in his view, it contradicts the fundamental ideal that “no man is above the law.”  He suspects that decision will be overturned one day.