An Old Hand At Court Gears Up for Battle

By David Nakamura
Washington Post Staff Writer
Tuesday, March 18, 2008; B01

Here's how veteran Supreme Court advocate Walter E. Dellinger gets ready for a big case:

Three dozen lawyers are waiting for him in a conference room, but Dellinger isn't in a hurry. In his 11th-floor office at O'Melveny & Myers, he meticulously cuts up his notes and tapes key sections into a manila folder. As he works, he grabs a black iPod, punches up "Ophelia," a 1970s rock song by the Band, and sings along: "Mama, you know we broke the rules!"

"How could this not put you in a good mood?" Dellinger, 66, exclaims, then dons a patterned tie with his navy suit and troops down the hall to meet his colleagues. Taking his position at a lectern, he's ready to go. He opens his folder.

"May it please the court . . . "

Dellinger and the District government's massive legal team were beginning their final practice session before today's historic appeal to the U.S. Supreme Court to uphold the city's 32-year ban on handguns. Their planning has been exhaustive: a year of work, a 15,000-word brief, countless pro bono hours.

Now the city's fate in the District of Columbia v. Heller rests in the hands of Dellinger, a garrulous former acting U.S. solicitor general who will have 30 minutes to explain to the nine justices why the District's gun ban is not inconsistent with the Second Amendment. The court has not ruled on the right to bear arms since 1939, and the case has drawn national interest as a constitutional bellwether that could affect gun control laws across the country.

A longtime constitutional law professor at Duke University, Dellinger is known as a folksy, liberal-leaning academic who would love to engage in a lofty philosophical debate over what the framers meant: Is the right to bear arms reserved for individuals or just a "well regulated" militia? But he knows the case could be won on a more prosaic point. One of the city's three arguments is that its law, which allows shotguns, is reasonable no matter how the justices feel on the first question.

"What I don't want to happen is for someone to say, 'The best historical argument ever offered to the court was Walter Dellinger's losing argument,' " said Dellinger, who has a 13-5 record in cases before the high court. "The academic and constitutional debate is fine, but our job is not to win a historical debate. It is to get our client's law upheld."

Dellinger, who had been advising on the case since city officials appealed a lower court's overturning of the gun ban last year, did not know until January that he would be making oral arguments. He was not sure he even wanted the job when Interim D.C. Attorney General Peter Nickles fired the city's lead lawyer, Alan B. Morrison, in an unrelated dispute, and asked Dellinger to step in. Dellinger was already juggling two other Supreme Court cases, including representing Exxon's bid to reduce punitive damages for the 1989 Exxon Valdez oil spill.

But if anyone can rise to the challenge, friends and colleagues said, it is Dellinger, who got his first job as a high court advocate in 1989 after bluffing through an interview.

"He's very engaging and a lively advocate," said Richard Lazarus, a Georgetown University law professor. "He's more expansive in his arguments, because as an academic, he tends to see the big picture."

On a recent Saturday, Dellinger, in an oversize blue cable-knit sweater, khakis and old tennis shoes, was in his office researching trigger locks. Two thick blue binders titled "D.C. v. Heller" rested on a desk, along with copies of "A Well Regulated Militia" by Saul Cornell and Supreme Court Justice Antonin Scalia's "A Matter of Interpretation."

Dellinger's wife, Anne, a former University of North Carolina law professor who splits time between Chapel Hill, N.C., and Washington, was in town. She was dressed in overalls and stretched out on the couch in her husband's office reading an abortion-rights book. It was the only way she was going to spend much time with him.

Dellinger argued nine cases as acting solicitor general, the officer who represents the government in Supreme Court cases, from 1996 to 1997 in the Clinton administration. But recent weeks have been more intense. "I don't remember having to work quite this hard for this period of time," he said. "Nine cases in nine months is not three in four weeks."

He has done crash reading. He has interviewed D.C. police officers to learn how the gun law plays on the streets. And last week he held three practice sessions, including one at Harvard University.

Thomas C. Goldstein, an experienced Supreme Court advocate from Akin Gump Strauss Hauer & Feld who is assisting the District, said Morrison, who was responsible for most of the court brief, was more versed in the case. But Morrison was "so deep into it that he was very committed to a particular strategy," Goldstein said. "Walter is more willing to compromise and go where the justices go. He's more flexible."

Dellinger would have been content with a career in academia. But in 1989, after speaking at a conference, he was approached by the Virginia Hospital Association, which was seeking an advocate in its Supreme Court fight against the state for more Medicaid funding. Dellinger was asked to interview the next day. So he pulled an all-nighter, studying in the Duke faculty lounge, and made up for what he didn't know by bluffing. He got the gig -- and later won the case.

Dellinger's public profile soared. In 1993, he was tapped by President Bill Clinton to be an assistant attorney general under Janet Reno. Dellinger's personable, persuasive style was apparent from the start. At a Justice Department party, he persuaded Reno to dance with him to "Mustang Sally," a moment later parodied on "Saturday Night Live."

He grew up in Chapel Hill with two sisters and a mother who sold men's clothing accessories. His father died when he was 12, and he figures that had something to do with the fact that he never owned a gun like some peers. "No one took me hunting or fishing," he said.

He graduated from the University of North Carolina, where he met Anne, and then Yale Law School. During more than 20 years at Duke, Dellinger became a nationally renowned constitutional expert who testified before Congress on abortion rights and against school prayer.

He rides a beat-up road bike around town and talks slowly, a Tar Heel inflection still in his voice.

Carter G. Phillips, a lawyer friend from Sidley & Austin, said Dellinger can be too folksy. As a professor, Phillips said, Dellinger had an hour to take his class through a narrative journey. In the Supreme Court, there is no such luxury.

"You better figure out what's the five-word answer, not the 105-word answer," Phillips said. "Walter struggles with that."

After Dellinger was promoted to acting solicitor general in 1996, Sen. Jesse Helms (R-N.C.) blocked his confirmation for the full-time job. Dellinger blames it on his support of former governor James Hunt's failed bid to unseat Helms in 1984.

"It was purely political," said Rep. David E. Price (D-N.C.), a college classmate. Dellinger is "not a guy who's going to try to act on personal opinions. He's very firmly grounded in the law."

Still, Dellinger handled a full slate of cases, including supporting a provision of the Brady gun control law that sought to require local law enforcement officials to conduct background checks on people who wanted to buy guns. He lost that one. He also lost while arguing that Paula Jones should not be allowed to pursue a civil lawsuit against a sitting president.

Heading back to his office after a lunch break on that recent Saturday, Dellinger popped into a newsstand to buy a copy of Sports Illustrated with North Carolina basketball star Tyler Hansbrough on the cover. He and his wife have a magazine rack in Chapel Hill featuring Tar Heel covers since the days of Michael Jordan.

Dellinger can deliver a rapturous analysis of Jordan's heroic sequence in the National Basketball Association finals against the Utah Jazz 10 years ago. And right there on the street, he did just that, relishing in the revelry of the big game, the winning play.

Just the thought of it made him smile.

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