It’s every appellate advocate’s nightmare, an apparently “gotcha” question that you have not anticipated or prepared an answer for, and it happened on Wednesday at the Supreme Court. As the Times reports it, in a case dealing with the relative positioning of pro and anti-Bush protesters:
Chief Justice John G. Roberts Jr. asked Mr. Wilker to put himself in the agents’ shoes.
“You’re the head of the Secret Service detail,” the chief justice said. “You’ve got to evacuate the president right away. Do you go through the anti-Bush crowd or through the pro-Bush crowd? You’ve got to decide right now, quickly.”
Mr. Wilker hesitated. Chief Justice Roberts said: “It’s too late. You’ve taken too long to decide.”
Mr. Wilker said he was the wrong person to ask. “I truly don’t know the answer to your question,” he said, “because I’m not a security expert.”
Justice Scalia said that much was true. “You’re the farthest thing from a security expert if you don’t know the answer to that one,” he said, to laughter.
My first reaction was to try to think up a good answer (see below), but my more analytic response was to go back to thinking about the difference between judicial neutrality and judicial dis-engagement, and the need not to assume that the two are the same, or that bias and engagement are the same. Rather many of us believe that a judge can be both neutral and engaged, but that engagement can also come with lack of neutrality. While of course, perceived “gotcha” questions always raise questions about intent, this is are far less the case when thrown to experienced advocates who should be able to go with the flow, than when such questions are thrown to the self-represented, who may find it harder not to jump to conclusions about the judge’s intent.
In any event, the question could surely have been asked in a way that seemed more consistent with a neutral search for truth (“Counsel, isn’t the problem with your argument that you fail to recognize. . .”) (Scalia certainly showed that he felt he knew the answer, and thus assumed that it was a “gotcha” question.)
As to a better answer, well, its far easier after the event to come up with the perfect language, but how about:
Actually, it may well be that the risk of a person with truly dangerous intent hiding themselves in a pro-presidential group might well be greater. On the other hand the risk of minor disruption might be greater with the anti-protesters. Its the job of the government to develop protocols that maximize security while maintaining the neutrality that we all agree the First Amendment requires.
Improvements and alternatives much appreciated in the comments.