One of the most in-demand items at the ABA Annual Meeting was a seat at the Moscone Center for the panel titled “Shaping the Law: A Solicitor’s General Roundtable.” The misplaced apostrophe notwithstanding, it was enlightening and a lot of fun.
Participants on the panel included Charles Fried (SG for President Ronald Reagan, 1985-89), Kenneth W. Starr (President George H.W. Bush, 1989-93), Drew Days (President Bill Clinton, 1993-96), Gregory Garre (President George W. Bush, 2008-09) and Edwin Kneedler (Acting Solicitor General for President Barak Obama, 2009). Theodore Olson (President George W. Bush, 2001-04) could not attend as scheduled because he was appearing that morning before Judge Walker, just a few blocks away, to argue the stay of that Judge’s recent order invalidating the California statute prohibiting same-sex marriages.
The panel was confronted with several questions that seemed straightforward but posed layers upon layers of substance.
WHO IS THE SOLICITOR GENERAL’S CLIENT? General Fried said it was the government of the United States — as distinguished from the people of the United States, or the President of the United States, the Legislature of the United States, or the “Tenth Justice” of the Supreme Court of the United States. General Days further explained that the Solicitor General does not make policy, while the Department of Justice and the Attorney General do. General Starr called the office “the Article II creation of the Executive Branch, created by Congress.” (Those interested in pursuing this topic are urged to review a great article by Seth Waxman on the historical context of the office.)
The enabling statute, enacted in 1870, created the Department of Justice and the Solicitor General who was to be “learned in the law” and was to “assist the Attorney General in the performance of his [sic] duties.” A central duty of the Solicitor General is to defend laws enacted by Congress — including laws that are passed over a presidential veto. Moreover, the Solicitor General is not restricted to practice before the Supreme Court — the General also can (and occasionally does) argue before lower federal courts, or indeed any court, when it is important to convey the interests of the United States. Indeed, one of the panelists, Edwin Kneedler, had only weeks before appeared in federal District Court and successfully argued in favor of a preliminary injunction staying the enforcement of the Arizona immigration statute.
HOW DO YOU DETERMINE THE INTEREST OF THE UNITED STATES IN A GIVEN CASE? The Solicitor General’s office sends requests for memoranda to all government departments and agencies, seeking both statements of interest and legal rationale with respect to matters before the courts. And, according to all of the panelists, they get back materials of outstanding quality. General Garre said that the “process elicits very helpful information from a vast resource, to learn of various interests,” including the impact of litigated matters on federal legislation. The requirement of legal analysis, not just statements of preferred outcomes, means that opposing views among departments and agencies are very frequently resolved in discussion and debate.
General Starr nevertheless emphasized that the President is “The Boss.” The office runs independently but the President, as Chief Executive, will very infrequently overrule an intended position. If the Solicitor General is offended by that, the proper course of action would be to resign at the appropriate time and in the appropriate way; but things do not come to that. General Days recalled just one instance where President Clinton directed the withdrawal of a proposed brief, and all panelists consider that the president acts entirely appropriately in doing so. General Days also recounted his job interview with President Clinton, who asked him “Professor Days, what’s the difference between the authority of the Solicitor General and of the President to assert the interests of the United States in legal proceedings?” Days’ response: “Mr. President, you’re in the Constitution and I’m not.”
WHAT IS THE ROLE OF THE PRINCIPLE (A/K/A “POLITICAL”) DEPUTY SOLICITOR GENERAL? General Fried explained that, from time to time, sensitive and delicate decisions need to be made that have social or political implications. It was awkward, and in some respects inapproriate, for the President or the Office of Legal Counsel within the White House to communicate such concerns directly to the Solicitor General. The creation of the office of Principle Deputy was very welcome, he said. The others agreed. The Principle Deputy is a presidential appointee and receives and discusses concerns that, entirely appropriately, emenate from the Executive. The effect, according to Fried, was to gain advantage for the professional staff of the Solicitor General’s office, immunizing them from concerns that are directed instead to the Principle Deputy. The Principle Deputy thus tends to preserve, rather than to dilute, the independence of the office.
General Kneedler added that the position is both a buffer and an explicator; when other departments challenge or protest a decision made by the Solicitor General, the Principle Deputy is appropriately the one to explain the “big picture” and assure the various constituent agencies that they have been heard and not merely ignored.
The topic continued into the role of the Solicitor General in mediating among fueding agencies and departments. Almost without exception, General Starr said, agencies accept the decision of the Solicitor General as to which writs for cert to support and for which position. It is inapproriate for an agency to appeal to the Attorney General or the president. General Days said this practice obtains because the Solicitor General will frequently meet with heads of agencies to ensure that they know they are being heard. He related a telephone call from the Secretary of the Army, after making a decision against the Army’s recommendation, and hearing on the other end, “General, I understand that you have decided against our recommendation and I’m calling only to let you know that I appreciate the attention you gave us and respect your decision.” General Friend recounted an extremely unpleasent difference in views between the Controller of the Currency and the Federal Reserve. But it is broadly understood that any agency that goes forth independently, intending to appear before the Supreme Court without the endorsement and approval of the Solicitor General, will lose.
WHAT HAPPENDS WHEN ADMINISTRATIONS — AND POLICIES — CHANGE? General Fried said that, during the early Reagan years, he “frequently” had been obliged to press a position that he knew the justices didn’t like and that hadn’t been taken by prior administrations. In such a posture, he said, you of course go forward; but the brief must be “perfect.” No overstatement, no oversight. General Days said it comes down to what all appellate lawyering comes down to: What arguments can be mustered, what record can be built to justify the change in position.
Each panelist agreed that it is an error to gear argument to a particular Justice. An appeal is directed to the entire court. In answering questions one is aware of the leanings and concerns of various members, but the brief itself is the “correct” statement of the law that can be relied upon by the entire court. General Fried added that to do otherwise would be “transparent and offensive.”
