Commentary: Avoiding difficult questions made easy

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One of the hazards of being an attorney, as I’m sure all of you have discovered, is that laypersons expect you to have an opinion on a whole variety of things far outside the realm of your knowledge.

Supreme Court nominations are one such instance.

I’ve read almost every published court opinion issued since 2000 by the U.S. Supreme Court, the United States Court of Appeals for the Seventh Circuit, the Wisconsin Supreme Court and the Wisconsin Court of Appeals.

Which means, of course, that I have never read a single opinion that any of the justices on the Supreme Court wrote before they joined the court. And I’ve never read a brief or a law review article that Supreme Court nominee Elena Kagan has written either.

It would be nice if presidents would appoint someone from the Seventh Circuit or the Wisconsin state courts once in a while, so we’d all have some experience with these people before they join the court.

Yet people expect us to have opinions about these people when they get nominated.

It’s not just Supreme Court nominations that put us in this awkward position. What busy attorney, with a full case load and looming deadlines to meet, has time to develop an informed opinion whether or not Judge Crabb correctly held that the National Day of Prayer was unconstitutional?

Who even cares whether the National Day of Prayer is constitutional, anyway? Nimrods who don’t know the difference between issue preclusion and claim preclusion, that’s who.

But we need some kind of response to answer these nimrods, don’t we? As such, I have developed ready, canned responses to quickly change the subject when asked such questions. Let me share some with you.

When asked about the constitutionality of the National Day of Prayer, I say, “Can you believe that National Day of Slayer originated almost four years ago? It was way back on June 6, ’06, and yet, it seems like yesterday.” If the guy you’re talking to is a Slayer fan, you’ve got a client for life; if not, at least he won’t bother you with silly questions anymore.

When someone asks about the Kagan nomination, I ask, “Did you see that picture of her on the cover of the Wall Street Journal, playing softball? You know, the Women’s College World Series starts next week. Wouldn’t it be great if the University of Arizona won it all? They haven’t won in three years, and it would be grand if their star shortstop K’Lee Arredondo could finish her collegiate career with a bookend championship to match the one they got when she was a freshman; don’t you think?”

Again, if the person you’re talking to is a big softball fan, you’ve got a client for life. If not, at least you don’t have to spend the next 15 minutes explaining why you could never support anyone for the U.S. Supreme Court unless they know that Lochner v. New York, 198 U.S. 45 (1905), was correctly decided.