There’s an interesting article titled They Pray for Judicial Restraint over at the LA Times website (Free registration required) that gives a little background on Michael Newdow, the atheist who is about to argue the Pledge case before the Supreme Court on Wednesday. The reporter talks a little about how Newdow recently practiced at Stanford University in front of a moot court while receiving some advice from various advisors trying to help him prepare. The article also talks a bit about Newdow’s quirks and eccentricities which could harm his chances of being successful and it does a good job of illustrating why Newdow wouldn’t be my first choice to argue a case this important.
That he is combative and unpredictable, with a tendency to vent obsessively about what he perceives as unjust, is another. That he could become a loose cannon in the staid, structured, always-restrained world of the high court causes particular worry.
Stanford law professor Pamela Karlan, who watched Newdow in moot court, said he argued as though he were addressing a jury. But the Supreme Court does not want to hear about personal feelings, she said.
“Oral argument is very low-key and nonrhetorical,” said Karlan, who co-teaches the Supreme Court clinic that held the moot court. “You are having a conversation with the justices in a cool, intellectual way.”
Some lawyers close to the case complain that Newdow is refusing to heed others’ advice. Newdow “marches to his own drummer, and he has a definite conception of what he wants to argue and how he wants to argue,” said a legal ally who declined to be identified.
But USC law professor Erwin Chemerinsky, who has been coaching Newdow, said the neophyte lawyer was willing to accept help.
After Chemerinsky sent Newdow an e-mail criticizing one of his briefs, Newdow made revisions and sent it back under the heading, “Thank you, sir. Hit me again.”
“What I have tried to do is encourage him to focus on the issues that are before the Supreme Court,” Chemerinsky said.
Most legal experts seem to think that the first challenge Newdow will be presented with is convincing the Supreme Court that he has any stake in the issue due to the ongoing drama with regards to his custody battles over his daughter. If he fails to answer the question of standing then the High Court won’t have to rule on the issue of the Pledge’s constitutionality at all. Something the Supreme Court probably wouldn’t be all that upset about given this is a hot topic in an election year.
If Newdow manages to pass that challenge and the court ends up evenly divided with a 4 to 4 vote, a possibility since Justice Antonin Scalia has recused himself, then the lower court ruling will stand and then you can bet your sweet bippy it’ll be a hot topic, if not the hot topic, during the election.
It’s a long shot, but this could be a very interesting election year.