Watters v. Wachovia: Oral Argument Over

Oral arguments yesterday in Watters v. Wachovia went as expected (or, at least, as this ignoramus expected), with Scalia getting the only laugh and Thomas once again remaining silent (but deadly?), perhaps because he had recused himself and wasn’t present. My previously expressed wishes for a Thomas yuk-fest breakthrough went unfulfilled. He was probably intimidated by the recent poor showing of Michael Richards in the “comedy arena” and didn’t want to try his luck. Justice Ginsburg didn’t rant ala Dennis Miller, as I had hoped, but it’s apparent that she’s been reading the briefs. She caught onto the connection between a “division,” a “department” and an “operating subsidiary,” at least when it comes to the OCC.

I’ll leave the parsing of the nuances to those more adept at it than I. I’ve read reports that Wachovia’s counsel seemed to get the worst of it, but I don’t see that from a reading of the transcript. Maybe you had to be there.

I’m sometimes surprised when certain justices end up so far from where they appeared to be during oral argument. When a justice says that he’s “concerned” about an implication, and then permits counsel to take off uninterrupted, you might smell a setup.

I’d expect Scalia and Roberts to be the best bets for Watters based upon their comments, although Scalia asked tough questions of both sides. I also thought Scalia’s and Roberts’ back and forth with Sri Srinivasan (“quick, say ‘Sri Srinivasan’ fast, three times!”) was a fairly good exchange.

To me, Justice Ginsburg appeared to be the OCC’s best buddy, although one reporter thought she leaned toward Michigan. Justice Kennedy definitely seemed pro-Wachovia. Justice Stephens referred to Mr. Long as Mr. Blanchard, so I’m not certain whether he’s been taking his medicine in the proper dosages. He appeared to be hung up on “field preemption.” As Long  put it in so many words, “If that floats your boat, right on, and I’ve got two other ways to reason your way to support of the OCC if you fall out of love with that one.” It’s always nice to have more than one peg upon which to hang your hat.

Justice Breyer also mentioned “fielding,” but I assumed he was talking about Derek Jeter’s skill set.

Blanchard was gang tackled right off the bat (which happens), and Long a little bit less so, but both held their own. Overall, however, there’s usually never enough time in those sessions to do more than shoot yourself in the foot, if you’re so inclined. No one seemed to do so, although interested partisans may disagree.

Of course, afterward, both sides thought that they’d done well, and both predicted victory.

Now, let’s hope that over the next six to eight months, the law clerks educate the justices on just what a national bank’s operating subsidiary actually is. Based upon a few of the questions, some of them have a way to travel until they’re up to full speed.

Only one laugh, though. That’s 1.9 laughs under the Roberts’ Court average. It’s also half of what Justice Scalia got yesterday in Massachusetts v. EPA.

Then again, greenhouse gasses are a lot more amusing than the OCC. According to states’ rights advocates, they also smell better.

Leave a Reply

Your email address will not be published.