Lindsay Harrison was a rookie when she made her appellate debut at the highest court. She also changed the rules and saved a man’s life.By Pamela J. Johnson
July 15, 2011
The young attorney might have been standing solo before the omnipotent Wizard of Oz. No small and meek here before the great and powerful.
Hair blond and unbridled, the lawyer faces the scrutiny of John Roberts, Clarence Thomas, Ruth Bader Ginsburg and the other United States Supreme Court justices.
Lindsay Harrison is arguing her first case in front of an appellate court, which happens to be the highest court. The scene is depicted in a large pastel drawing hanging on a wall in her Washington, D.C., office.
Not that they were breathing fire, but did the justices really glare at her in the intimidating manner the portrait suggests?
“Some of them absolutely did,” Harrison said with a laugh. “It was fun; really fun. By the time you’re standing before the court, you’re so well prepared it’s become a conversation between you and the nine justices. You know the case better than them at that point, so your job is to help educate them about your perspective on the issues.”
An attorney still cutting her teeth, Harrison won the case. She also set a legal precedent and likely saved a life.
Not bad for someone who earned her bachelor’s degree 11 years ago. Harrison received a degree in political science and gender studies from USC Dornsife, then was accepted to Harvard Law School. Her draw to D.C. was working for the No. 1 pro bono firm in the nation, Jenner & Block.
At the firm four years, she made her appellate debut at the U.S. Supreme Court in January 2009. The case revolved around Jean Marc Nken, who in 2001 fled his native Cameroon to the U.S. after twice being imprisoned — where he was repeatedly beaten — for his pro-democracy work. When his visa expired, an immigration judge ordered him deported, then the Board of Immigration Appeals rejected his request for asylum.
“He was put in federal prison and they were going to deport him to Cameroon,” Harrison said. “That’s when we got the e-mail.”
After the World Organization for Human Rights sent the firm-wide request, Harrison immediately volunteered. The immigration case also appealed to Harrison on a personal level. Her grandfather, Simon Gelfand, an attorney in the Soviet Union, migrated to the U.S. in the 1970s. Gelfand, his wife and young son who would become Harrison’s father fled their native country during the Era of Stagnation, escaping repression and an economic crisis. Settling in Dallas, Texas, the former lawyer ran the kosher deli in a local market to put food on the table.
Harrison met Nken in federal prison in Maryland.
“He’s an amazing person,” Harrison said of Nken, a pharmacist in Cameroon, who used his time in prison to read U.S. history books. “He liked talking with me and my colleagues about the legal arguments in the case.”
Harrison filed an appeal in the 4th Circuit Court of Appeals, the federal court covering Maryland where Nken lived with his American wife and their baby boy. She argued that the government had failed to consider the grave danger Nken faced if returned to Cameroon. Ignoring letters from Nken’s family asserting his life surely would be in peril, the government had rejected Nken’s asylum claim, concluding he faced only general unrest in his homeland.
While attempting to assure Nken wasn’t deported during the appeal, Harrison sought a “stay” of deportation, which would place the expulsion on hold while the appeal was considered. In preparing the stay motion, Harrison discovered a circuit split on stay grants in deportation orders.
In the 4th Circuit Court of Appeals, which includes Virginia, Maryland, North Carolina, South Carolina and West Virginia, immigrants could be deported while cases were pending even in the likelihood they would win their appeal and their life would be in danger at home. The same went for the 11th circuit, which includes Georgia, Florida and Alabama. But in all other nationwide jurisdictions, courts considered the dangers an immigrant would face if deported and generally granted stays of deportation where such risks existed.
“So if you were an immigrant who happened to be in Maryland, well too bad, you might be sent back to where you came from,” Harrison said. “If you were in Chicago you wouldn’t. I filed a stay to put any deportation on hold until the case was argued in court.”
As expected, the 4th circuit rejected Nken’s bid for a stay, meaning he could be deported at any time.
“I stayed up all night drafting a petition to the Supreme Court,” Harrison recalled of the day the court denied her motion. “I asked the Supreme Court to give my client a stay, and the alternative, to at least decide which rule on stay grants was right.”
The petition was sent only to the chief justice who hears motions in cases arising from the 4th Circuit. A week later, the court requested nine copies of the motion.
“That was a good sign,” Harrison said. Shortly afterward, her firm got the call that the Supreme Court granted the stay, and agreed to hear the case over which rule was right — in six weeks.
Six weeks. Normally, she would get several months to prepare an argument.
“The day we got the six-week notice, I was the most nervous,” Harrison said. “From that day on, I was working too hard to have time to panic.”
Jenner & Block’s veteran appellate litigators prepped with Harrison and held five moot courts — with participants from their firm and various law schools and groups — so she could practice her oral argument.
“A lot of arguing is turning questions into opportunities,” she said. “Every question can be a path to your affirmative points.”
Back to the portrait, where some of the justices look unnerving to say the least, Harrison corrects with a smile: “They were not sneering, they were great. They were tough. They asked hard questions. But I had thought extensively about all of their questions. They asked no question I hadn’t received in practice. That’s not about my skill, that’s about the people who helped me prepare.”
She recalled standing at the podium, listening to the flutter behind her as spectators filed in. Her heart beat faster and she tried not to turn around. The justices strode in, taking their seats five feet in front of her. She read one sentence from her notes then was off and running, never returning to her prepared statements.
“I found myself talking to them as if they were interested colleagues,” Harrison said. “They interrupted with rapid-fire questions, but it actually felt like the 10 of us were figuring out the answer to a puzzle. I kept telling myself that if I could convince the justices I was right, I could potentially save a man’s life.”
After 30 minutes of verbal jousting, time had run out. Justice John Paul Stevens asked for one more question.
“Is it your understanding of the government’s interpretation of the statute that our stay in this case violated the statute?” he asked.
“Yes, Your Honor,” Harrison replied.
“And that was it,” she recalled. “If the rule is that the Supreme Court can’t even stay a deportation under the statute to decide what standard should apply to stays, then it doesn’t make sense as a rule, or seem like a rule Congress would have intended. That to me was the turning point, when I could walk away thinking, ‘We have a really good shot of winning.’ ”
Months later, the Supreme Court ruled 7-2 in favor of Nken, changing the deportation stay standard in the 4th and 11th circuits. Justices Samuel Alito Jr. and Thomas dissented. Although Nken went home and the firm celebrated with champagne and cake, the case is far from over. While juggling cases for six clients, including major multinational corporations, Harrison is fighting to make Nken a citizen.
The five moot trials aside, some of the best training for her Supreme Court oral argument was — wait for it — her experience on the USC Trojan Debate Squad. But she believes she might not be an attorney if not for Howard Gillman, her political science professor who is now the dean of USC Dornsife.
“At the time I was waffling between law school and film school,” said Harrison, who minored in cinematic arts. “Professor Gillman really inspired me to commit to going to law school. He has such enthusiasm for the U.S. Constitution that was completely contagious.”
These days, Harrison’s office is sparse because the 31-year-old is packing. She’s recently been promoted from associate to partner. Among the things she’ll be moving to her larger and plusher digs is the portrait.