[MUSIC PLAYING] SPEAKER 1: I want to welcome you
to the final round of the Ames Moot Court Competition. SPEAKER 2: All rise. SPEAKER 3: Presiding tonight as
Chief Justice is the Honorable Ruth Bader Ginsburg. SPEAKER 4: Ruth Bader Ginsburg. RUTH BADER GINSBURG:
Be seated, please. THOMAS S. LUE: Her presence
was just tremendous. It filled the courtroom--
the Ames courtroom. You can palpably sense this
kind of overwhelming respect and admiration that
we all had for her when she walked
into the courtroom. NIKOLAS BOWIE: I had never
argued before a real court before. And one of my first
arguments featured, as the chief justice,
Ruth Bader Ginsburg, who's a personal hero. RUTH BADER GINSBURG:
Please proceed. I, Ruth Bader Ginsburg
do solemnly swear-- MELISSA R. HART: She
was already a hero to me because she was only the second
woman justice on the Court. And that, of course, was
an inspiration for me. JILLIAN SHERIDAN
STONECIPHER: There's not a woman in the
legal profession who can say that Justice
Ginsburg didn't have an impact on her career. Just the legal precedent
that she set alone and her work as an
advocate changed all of our lives
and our opportunity. SPEAKER 5: Oyez! Oyez! Oyez! The Honorable Supreme Court of
the United States of America is now in session. FREDERICK D. NELSON: Of course,
it was a tremendous privilege to be able to argue in front
of such a distinguished panel. You had Justice
Sandra Day O'Connor, and you had, then Judge,
Ruth Bader Ginsburg. RUTH BADER GINSBURG: Didn't
such a hearing occur? The district court
held a hearing limited to the voluntariness
of appellant's consent to transfer. FREDERICK D. NELSON: That's
correct, but the district-- RUTH BADER GINSBURG:
That is precisely the issue on which the district
court did hold a hearing. FREDERICK D. NELSON: But as-- It was vigorous questioning
from all of the panel members, but especially from
Judge Ginsburg, which was no surprise. We were looking-- RUTH BADER GINSBURG: But isn't
it true, as a general matter, we don't enforce foreign
penal statutes or judgments? FREDERICK D. NELSON:
No, it depends, I suppose, on your meaning
of the word "enforce"-- RUTH BADER GINSBURG: We
don't implement them. We don't give them effect. Isn't there a
general rule, though, that we don't enforce foreign
country penal judgment? FREDERICK D. NELSON: Well,
generally, there would be no-- RUTH BADER GINSBURG:
For example, collect a penal fine here? FREDERICK D. NELSON:
We do enforce them in extradition
contexts, in terms of sending the people back. RUTH BADER GINSBURG: But
there is no general rule that we enforce them. If we must find a general rule,
it probably runs the other way. FREDERICK D. NELSON: Well,
I think, generally, there's no reason for us to enforce them
because the United States is generally concerned
with whether or not its laws have been violated. MELISSA R. HART: Her
questioning at Ames was very similar
to her questioning in real oral arguments. She's tenacious. She was not trying to
make her own point, she was trying to get an
answer to her question. And so she would keep on asking. FREDERICK D. NELSON: I
came away more convinced than ever of the power of
this woman's intellect. RUTH BADER GINSBURG: We'll
now hear from respondents. And Mr. Campbell
will speak first. DAVID A. CAMPBELL:
Chief Justice Ginsberg, and may it please the Court. My name is David Campbell, and
with co-counsel Jonathan Malis, I represent the
Rosebud Sioux tribe. We hoped and thought it would
be Justice Ginsburg because she was the most recent appointee. And often the most
recent appointee will serve as the next justice. So we were really excited
when we heard that it would be Justice Ginsburg. For the same
reasons, Your Honor, the sovereign
immunity of the tribe precludes that the federal
court subject matter jurisdiction in this case. RUTH BADER GINSBURG: That was
a puzzling argument to me, that The United States
itself would not be immune, I take it, from an action
seeking injunctive relief. Would it? DAVID A. CAMPBELL: Your
Honor, if that cause of action were brought against
a government official, it would not be immune. Yes, that's the case. RUTH BADER GINSBURG:
The United States. DAVID A. CAMPBELL: If the suit
were brought against the United States itself-- yes, Your Honor. Unless Congress has-- RUTH BADER GINSBURG:
Has sovereign immunity from claims
for injunctive relief-- for non-monetary relief? There's no monetary
relief sought here. Is that right? DAVID A. CAMPBELL: That's
correct, Your Honor. Yes, if the action is not
brought against an official itself, then-- RUTH BADER GINSBURG:
What if I tell you-- and I'm reasonably
confident of this-- that the United States does
not have sovereign immunity from claims for
equitable relief-- for non-monetary relief,
why should the tribe have greater immunity than
the United States does itself? DAVID A. CAMPBELL:
Your Honor, that was this court's explicit
holding in Santa Clara Pueblo-- that a tribe-- even in an
action seeking injunctive, or injunctive or
declaratory relief-- has sovereign immunity from
that underlying action, if the action is brought
against the tribe itself. JONATHAN M. MALIS: It
felt very real at the time and Justice Ginsburg
was a sharp questioner. She took the
competition seriously. I think that added to the
excitement of the competition. RUTH BADER GINSBURG: If you're
wrong about the exclusivity of this forum, do you
win or do you lose? JONATHAN M. MALIS:
Your Honor, we-- RUTH BADER GINSBURG: If this
is indeed a transitory claim. JONATHAN M. MALIS: We
win anyway, Your Honor, because the tribe has a strong
interest in adjudicating this case in order to fulfill
its interest in preserving self-government and
its own sovereignty. RUTH BADER GINSBURG: We
are unanimous that there are two best oralists. And they are David Campbell
and Jonathan Malis. [APPLAUSE] DAVID A. CAMPBELL:
When she passed-- and my wife and I--
someone had circulated a video of the event. We hadn't seen it for
so long, but we decided to share it with our kids. We have three kids,
including two daughters. My daughters, in
particular, were so excited because they view Justice
Ginsburg as such a role model. My esteem was raised in
their eyes only because of the association
with Justice Ginsburg. So it just reminded
me and reinforced what an incredible
impact she's had on so many people, and
especially young women, including in my family. RUTH BADER GINSBURG: We will
now hear from Mr. Bowie. NIKOLAS BOWIE: The
advice I received from people who had argued
before the Supreme Court was that when Justice
Ginsburg asks a question, it's going to be very incisive. But also, she's not always clear
when her question is finished. When she started
to ask a question, you'd get really
tense because it's like what is she going to say? But then she would
speak and you would not know whether she was done. RUTH BADER GINSBURG: So you're
saying that the Ames Circuit Court was wrong in that regard
because that is what they said in their opinion, right? NIKOLAS BOWIE: Sorry,
that the denial-- RUTH BADER GINSBURG: That the
majority of circuits hold-- in the asylum context-- that denial of right
to counsel of choice does not require prejudice. NIKOLAS BOWIE: That that
was an incorrect statement in the court below,
Your Honor, yes. When I was in law
school, Justice Ginsburg was the only member of the Court
who had really made her career as a public interest attorney. People who have made
it onto the Court have careers that members of
Congress and the president think are worthy of recognition. And so for the Court not to
have someone with her background of having looked at the law and
looked at constitutional law, and said-- that's not
right, that's unjust, I'm going to change that-- I think would have sent
a really bad message to people learning the law. Because it's very easy
to go through law school and learn constitutional
law or learn all of the other areas
of law and conclude-- this is how it is,
and this is how it should be by implication. And I think Justice
Ginsburg's entire career suggests that how it
should be may look very different from how it is. RUTH BADER GINSBURG:
I can't avoid saying how deeply touched
I was by the name adopted by counsel for the petitioner. I know Martin D.
Ginsburg would have been so pleased to see that. JILLIAN SHERIDAN
STONECIPHER: We decided to name our team the
Martin D. Ginsburg Team. We did this before
the semifinals, and we were a little
embarrassed when we found out she was going to be the
chief justice because we knew it might look like
we were sucking up. He was someone who inspired
us because of the way that he was a complete person. And someone who was
ahead of his time and enabled Justice Ginsburg to
make the massive contribution that she did. RUTH BADER GINSBURG:
We are convened to hear the case of
Amy Annis, et al, against the State of Ames. Mr. Lue, proceed
whenever you're ready. THOMAS S. LUE: Thank you. The experience is
seared into my memory. This was especially the
case because my team was assigned to the
side of defending a Defense of Marriage Act. I knew it was going to be tough. RUTH BADER GINSBURG:
You said alienage is a suspect classification-- THOMAS S. LUE: That is
correct, Your Honor. RUTH BADER GINSBURG: And
I'm asking you, well, what cases you based that on? THOMAS S. LUE: Your Honor,
I don't have the case in front of me for alienage. We got into a discussion about
the Equal Protection Clause, and suspect classes, and
semi-suspect classes. And the Justice was
just grilling me. RUTH BADER GINSBURG:
And then you gave us for a semi-suspect
sex and out-of-wedlock birth. Is there anything else? But I was just wondering
when I got to that point in your brief, why
you didn't say "i.e." instead of "such as,"
implying there were many more. THOMAS S. LUE: Your Honor, that
was probably a decision that we now know better not to do. [LAUGHTER] Suffice it to say this
was not a question we had mooted beforehand,
despite the hours of mooting. But looking back
on that now, it's clear that it wasn't
just a point about being precise in your briefs. What she was getting
at with this comment around "e.g." and "i.e." is that
these classifications really are carefully crafted,
carefully targeted. And they often reflect
years of groundwork by advocates that have
fought tooth and nail to get the right cases in front
of the Court at the right time and in the right circumstances. And that, of course,
in many ways, was the story of the
arc of her own career. And I think we're all
indebted to Justice Ginsburg for her pioneering
work in equal protection. MELISSA R. HART: She
also inspires me. As a justice now, I
really take her philosophy to dissent really seriously. The dissent is
speaking to tomorrow. So you don't write a
dissent just to say, well, this is what I think,
it's a little bit different. You write a dissent because
you think that the law could someday be different. JILLIAN SHERIDAN STONECIPHER:
After the competition, we had a little reception. And when I got to
meet Justice Ginsburg, I said, thank you so
much for everything you've done for women, both
as an advocate and a Justice. And her response was, I
was in the right place at the right time,
which has to be one of the few things she said
that is just completely wrong. Obviously, Justice Ginsburg
made the time and place where she was the time and
place to change the world. RUTH BADER GINSBURG: I have a
slightly different experience with the Ames competition. This is the third time
I have participated in such a competition. And because I read so many
briefs in my everyday job, I had sworn off moot courts. I said, no more. But your wonderful
new dean called me, and in her inimitable way,
without really twisting my arm, asked me to do this. And so I am here because
of Dean Elena Kagan. And I must say, it was a treat. I thoroughly enjoyed it. And now the hour is late. So the court looks forward to
meeting all the participants shortly. But the court is adjourned. [GAVEL] [APPLAUSE]
