Justice Kennedy Has Seth Waxman’s Back, and Gently Benchslaps Tom Goldstein

December 11th, 2014

Oral argument in Gelboim v. Bank of America Corp.¬†presented a duel of two of the premier Supreme Court advocates–Tom Goldstein for the petitioners, and Seth Waxman for the Respondents. During arguments, Goldstein called Waxman’s argument “in a word, ridiculous.” Justice Kennedy replied, and said “Excuse me, what is that word.” Goldstein doesn’t answer Kennedy’s question, and moved on with his argument.

goldstein-benchslap

That’s ridiculous!

H/T Jacob Berlove

Update: The audio is here. If you scan to 55:30, you can hear Goldstein’s ridiculous comment, but Kennedy’s comment is not recorded. I think there may have been some cross-talk, and someone else asked about the citations, but it isn’t clear.

Update 2: On further listening, I think the faint cross talk was a Justice asking about a citation, which would make sense in light of Goldstein’s response. The Court Reporter presumably heard Justice Kennedy’s comment (“Excuse me, what is that word.”), but it didn’t make it into the audio. As we learned with Justice Thomas’s remarks, the microphones do not capture everything. Comments that are noted in the transcript do not always make it clearly into the recording. I will wait for Alderson’s to release the final transcript to clarify the issue. In the interim, I have modified the post above, and eliminated the description of Justice Kennedy’s¬†interjection.