"For the United States": Government Lawyers in Court

Abstract

It is a rare attorney practicing in the federal courts who does not encounter government lawyers on a regular basis.1 Those of us on the bench-particularly those of us in the D.C. Circuit-have had many opportunities to become familiar with government lawyers. In my nineteen-plus years as a federal appellate judge, I have engaged with hundreds-perhaps thousands-of government lawyers as they argue their way through the approximately eighty-three percent 2 of our docket in which the federal government is a party. Before becoming a judge, I did two stints in the Department of Justice (DOJ), the second time as an Assistant Attorney General for Legislative Affairs. Although I functioned in that job primarily as a legislative advocate for DOJ before Congress, I often discussed the Department's positions on pending bills with lawyers both within DOJ and within other departments and independent agencies. In my private practice, I worked both alongside and in opposition to government attorneys. Like eight of my ten colleagues on the D.C. Circuit, I have been there, and from my here now vantage point as a judge, I propose to set down, largely impressionistically, some of my observations and reactions to government lawyering in court.