On April 27, 2009, Ben Mizer ’99, Ohio’s Solicitor General, argued his first case before the Supreme Court. It won’t be his last. When a case involving the state’s agencies or departments has been appealed, Mizer’s office represents the state before the United States Supreme Court, the federal Sixth Circuit Court of Appeals, and the Ohio Supreme Court. But on this date, Mizer had an unusual case of butterflies. He was arguing before his former boss, Justice John Paul Stevens, for whom he had clerked. Before the arguments began, Mizer made a motion to admit a friend of his—another lawyer—into the courtroom. “I stood and looked up to see Justice Stevens smiling down knowingly. It threw me off a little bit. But then the arguments started, and the butterflies were gone. It was very special.”
Mizer’s case involved allowing the State of Ohio to conduct a hearing that would address whether a defendant who had been sentenced to death for murder is mentally retarded. Mizer won the case, convincing the Court that a hearing did not put the defendant in jeopardy twice for the same crime.
Mizer relishes the difficult case. Less fun is the tumultuous ebb and flow of public scrutiny. A year after Mizer was permanently appointed to the job by Ohio’s Attorney General, he was plunged into an inflammatory debate. Faced with declining tax revenues and the threat of huge cuts to the state’s educational system, Ohio’s governor decided to install slot machines at horseracing tracks. Because the decision involved raising money for the budget, the state (via Mizer) argued that the public didn’t need to sign off on the slot machines. But lower courts and a boisterous public disagreed.
Mizer argued the case before the Ohio Supreme Court, which ruled that the state’s citizens did in fact, have the right to vote on the installation of slot machines. “We lost rather badly,” says Mizer. And even though the public eventually did vote for the slot machines, getting there was not fun. “It was a hard case and I enjoyed the fact that it was hard,” he says. “I didn’t enjoy the public criticism that I took as the governor’s lawyer. I was just doing my job. He’s the office holder and it’s my job to represent him.”
How does he prepare for cases that are particularly difficult? “I totally immerse myself. And the best way is to write the brief. Nothing crystallizes an argument better than writing it.”
He first developed his style, says Mizer, at Wooster’s Moot Court. “I don’t think my style has changed a whole lot. How I prepared oral arguments, how I conducted myself at the podium during competitions . . . is the same that I do today. I figured out something that worked for me then, and it still works for me.”
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