My only judicial exchange with the Notorious RBG

Ruth Bader Ginsburg.  Wow.

Bobbi and I watched the CNN film  RBG for the second time on Labor Day evening.  Just as good the second time around.  What a brilliant lawyer, jurist, and woman!  A public interest lawyer in the tradition of Louis Brandeis and Thurgood Marshall, in contrast to corporate political careerists who Republicans are now intent on putting on the Supreme Court.

I mentioned to Bobbi that I had one oral argument before Justice Ginsburg when she was on the D.C. Circuit.  The case, Eagle-Picher et seq. v. United States, 937 F.2d 625 (D.C. Cir. 1991), was on appeal from the District Court of the District of Columbia, in which we had convinced the lower court to dismiss as a matter of law third-party claims brought by several asbestos manufacturers seeking to shift their tort liability to federal employees in public shipyards on to the federal taxpayers.

We earlier had won similar cases the First, Third, Federal, and Ninth Circuits.  In re All Maine Asbestos Litigation (PNS Cases), 772 F.2d 1023 (1st Cir. 1985, cert. denied, 476 U.S. 1126 (1986); Eagle-Picher v. United States, 846 F.2d 888 (3d Cir. 1988), cert. denied, 488 U.S. 965 (1988); Lopez v. A.C. & S., 858 F.2d 712 (Fed. Cir. 1988), cert. denied, 491 U.S. 904 (1989); Bush v. Eagle-Picher, 927 F.2d 445 (9th Cir. Cir.).  But in each case, the legal theory adopted by the circuit in holding for the government was a bit different.

The panel in the D.C. Circuit case included Chief Judge Patricia Wald and then-Circuit Judge Clarence Thomas.  Needless to say, Judge Thomas did not ask any questions.  Chief Judge Wald asked most of the questions, but Judge Ginsburg was particularly active in interrogating my opponents on the question of "issue preclusion" -- the idea that they should be barred from re-litigating the legal question in the D.C. case, since they already had lost in the other four circuits.

The only question to me that I recall from Judge Ginsburg was at the very end of my time, and concerned the issue preclusion issue.  She wanted to know why the Government had not pressed it.  Her question was understandable, but I think I satisfied her, since the panel unanimously affirmed nearly all the results (if not the precise reasoning) of the district court, without reference to issue preclusion.  (The small portion that was remanded for further consideration was dismissed by the district court, and there was no further appeal.)  I like to think that my response completed the Government's presentation on a high, or at least a humorous, note.  Here is the transcript: