Tribe

CHARLESTOWN — A leading constitutional scholar said yesterday that only “childish and selfish” reasons would prevent former U.S. Solicitor General Theodore B. Olson from being chosen to argue for the state in an Indian land case set to go before the nation’s high court Nov. 3.

Asked to comment on the stand-off between the state and Town of Charlestown over who will appear before the Supreme Court, Laurence Tribe, a professor at Harvard University, said: “The obvious solution is for Ted Olson to argue the case. He’s much more experienced … But if they find that unpalatable, they should flip a coin and grow up.”

The state and Charlestown’s assistant solicitor on Indian affairs, Joseph S. Larisa Jr., have been battling for months about who would best represent Rhode Island in its bid to keep control over 31 acres owned by the Narragansett Indians. Just weeks ago, the high court rejected requests to divide the half-hour of arguing time, leaving it to Governor Carcieri, Attorney General Patrick C. Lynch and the Town of Charlestown to decide. They’ve been given until noon next Thursday to provide the court with a name.

Carcieri and Lynch back Olson, who has tried 50 cases before the high court. Despite the governor’s personal pleas, Charlestown continues to support Larisa, who has handled the case for a decade.

Larisa wants to settle the issue with a coin toss, but Carcieri and Lynch have refused.

Tribe, who as one of the country’s top Supreme Court practitioners, faced Olson in the case Olson won that placed George W. Bush in the White House eight years ago. Tribe said he considers Olson a friend, but remains objective based on Olson’s legal acumen.

“It’s much easier to lose a case in oral argument than to win one,” said Tribe, adding “People often handle a case for 20 years and haven’t a clue what the Supreme Court wants to hear.”

Tribe referred to a coin-flip in which the winning lawyer — who had limited experience before the high court — was sued for malpractice after losing the case.

Meanwhile, pressure mounted yesterday for Larisa to step aside, with 12 days to go before the court date. Lynch issued a stern statement to Charlestown leaders, warning that the three parties should reach a “democratic” solution by taking a majority vote or risk sacrificing the state’s case.

“Democracy was an adequate enough framework to form the United States of America. It should be an adequate enough framework to decide who argues this case before the U.S. Supreme Court,” Michael J. Healey, spokesman for the attorney general, said. “The Town of Charlestown, however, is rejecting the democratic process and is saying it prefers a game of chance to decide it. The attorney general and the governor do not think there should be games of chance in Charlestown.”

Acting Town Council President James M. Mageau was waiting last night to hear from Town Solicitor Robert E. Cravenon whether to call an emergency council meeting today.

“I’m just disappointed with all of them. It seems to me this has just gotten out of control,” Mageau said, noting that Carcieri had paid the town for Larisa’s services in the past. He said he would support Olson, but didn’t know if the three remaining council members would agree.

Larisa defended his position, saying that Lynch had rejected his proposal that the issue be decided on a merits basis through mock court arguments. In addition, he said, the attorney general blocked his attempts to split arguing time with Olson.

Had Lynch agreed to that proposal, “we would have had both Mr. Olson and I arguing the case instead of competing to argue,” Larisa said. “That is truly a shame.”

He added: “The town has tried and continues to try to resolve the issue in a way fair and equitable to the town and state.

As for Tribe’s statements, Larisa said Tribe represents one side of a legal debate about whether experience before the Supreme Court trumps time spent on a case.

Larisa looked to a recent gun-rights case won by a lawyer making his first appearance before the high court. That landmark ruling overturned the District of Columbia’s ban on handguns.

The Washington, D.C., lawyer who argued successfully against another former solicitor general in the Second Amendment case threw his support to Larisa yesterday.

“The justices do not decide these cases based on personal relationship with attorneys,” said Alan Gura, 37. “The idea that only a handful of lawyers can argue before the Supreme Court is great marketing.”

Because the court hears so few cases each year, competition is fierce for face-time before the justices, with some lawyers pouncing on every case the court agrees to hear, he said.

“There is no substitute for knowledge of the record,” Gura said, adding “I think they should flip a coin.”

Rhode Island brought the suit against the Department of Interior almost a decade ago after the department agreed to place 31 acres in Charlestown in trust for the Narragansett Indian tribe. Trust status would free the land from most state and local laws and place it under federal and tribal control. Rhode Island and Charlestown leaders fear it could open the door to a casino or other venture immune to state oversight.

The state, which was joined in the suit by Charlestown, has lost in all the lower courts.

Whoever is chosen will face Solicitor General Gregory G. Garre.

kmulvane@projo.com