Mallard v. United States Dist. Court for Southern Dist. of Iowa Page 16

Mallard v. United States Dist. Court for Southern Dist. of Iowa general information

Media for Mallard v. United States Dist. Court for Southern Dist. of Iowa

Audio Transcription for Oral Argument - February 28, 1989 in Mallard v. United States Dist. Court for Southern Dist. of Iowa

Antonin Scalia:

"You'd better read the Jenks Act. "

I don't think he'd say, the fact you don't know about the Jenks Act is a sufficient reason for not appointing him because there's certainly a lot of statutes that lawyers are unfamiliar with when they first get involved in a matter.

Gordon E. Allen:

At the first instance I--

Antonin Scalia:

And I think most appointing judges do that.

So, you'd better learn something about those matters.

Gordon E. Allen:

--At the first instance I would suggest that he would say what Judge Vietor said to Mr. Mallard, read Section 1983.

If after reading it, he demonstrated no proficiency whatsoever, then withdrawal might be--

William H. Rehnquist:

Reading Section 1983 is maybe one sentence.

But it's a by-reference.

It's the whole constitution and federal statute.

[Laughter]

Gordon E. Allen:

--I understand that.

Byron R. White:

But I take it that the position that you're... that you disagree with is that the judge has no power under any circumstances to order an attorney to serve.

Gordon E. Allen:

I adamantly disagree with that.

Byron R. White:

That is... that is the position on the other side.

The word "request" means request.

It doesn't mean an order.

Gordon E. Allen:

I adamantly--

Byron R. White:

And--

Gordon E. Allen:

--disagree.

Byron R. White:

--so the lawyer doesn't have to show incompetence or that... or some hardship or anything else.

He just doesn't want to do it.

Gordon E. Allen:

All he need do under Mr. Mallard's hypothesis to... is to express unwillingness.

Byron R. White:

"Sorry, judge".

Gordon E. Allen:

"Sorry, judge, I'm busy. "

He doesn't even have to say, "I'm busy".

He just says, "Sorry, judge".

Sandra Day O'Connor:

Would professional rules in the State of Iowa speak to that question in any way?

Gordon E. Allen:

I believe they do.

And our brief did indicate that we believe--