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]<\/em> duties.”\u00a0 A central duty of the Solicitor General is to defend laws enacted by Congress — including laws that are passed over a presidential veto.\u00a0 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\u00a0important to\u00a0convey the interests of the United States.\u00a0 Indeed, one of the panelists, Edwin Kneedler, had only weeks before appeared in federal District Court and \u00a0successfully argued in favor of a preliminary injunction<\/a> staying the enforcement of the Arizona immigration statute.<\/p>\n HOW DO YOU DETERMINE THE INTEREST OF THE UNITED STATES IN A GIVEN CASE?<\/strong>\u00a0 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.\u00a0 And, according to all of the panelists, they get back materials of outstanding quality.\u00a0 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.\u00a0 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.<\/p>\n General Starr nevertheless emphasized that the President is “The Boss.”\u00a0 The office runs independently but the President, as Chief Executive, will very infrequently overrule an intended position.\u00a0 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\u00a0come to that.\u00a0 General Days recalled just one instance where\u00a0President Clinton directed the withdrawal of a proposed brief, and all panelists consider that the president acts entirely appropriately in doing so.\u00a0\u00a0General Days\u00a0also 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?”\u00a0 Days’ response:\u00a0 “Mr. President, you’re in the Constitution and I’m not.”<\/p>\n WHAT IS THE ROLE OF THE PRINCIPLE (A\/K\/A “POLITICAL”) DEPUTY SOLICITOR GENERAL?<\/strong>\u00a0 General Fried explained that, from time to time, sensitive and delicate decisions need to be made that have social or political implications.\u00a0 It was awkward, and in some respects inapproriate,\u00a0for the President or the\u00a0Office of Legal Counsel within the White House\u00a0to communicate such concerns directly to the Solicitor General.\u00a0 The creation of the office of Principle Deputy was very welcome, he said.\u00a0 The others agreed.\u00a0 The Principle Deputy is a presidential appointee and receives and discusses concerns that, entirely appropriately, emenate from the Executive.\u00a0 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.\u00a0 The Principle Deputy thus tends to preserve, rather than to dilute, the independence of the office.\u00a0<\/p>\n 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.<\/p>\n The topic continued into the role of the Solicitor General in mediating among fueding agencies and departments.\u00a0 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.\u00a0 It is inapproriate for an agency to appeal to the Attorney General or the president.\u00a0 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.\u00a0 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.”\u00a0 General Friend recounted an extremely unpleasent difference in views between the Controller of the Currency and the Federal Reserve.\u00a0 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.<\/p>\n WHAT HAPPENDS WHEN ADMINISTRATIONS — AND POLICIES — CHANGE?<\/strong>\u00a0 General Fried said that, during the early Reagan years, \u00a0he “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.\u00a0\u00a0 In such a posture, he said, you of course go forward; but the brief must be “perfect.”\u00a0 No overstatement, no oversight.\u00a0 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.<\/p>\n Each panelist agreed that it is an error to gear argument to a particular Justice.\u00a0 An appeal is directed to the entire court.\u00a0 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.\u00a0 General Fried added that to do otherwise would be “transparent and offensive.”<\/p>\n