As Elena Kagan’s debut before the Supreme Court grows closer, I’ve been thinking about how her past experiences will influence her performance as Solicitor General. The fact that I’m reading Between Law & Politics, Richard Pacelle’s fascinating look into the world of the Solicitor General, didn’t hurt either.
Before I go any further, I should clarify what I mean with the term “qualified.” If I change the question a bit, the answer would be come obvious: Does Elena Kagan meet the qualifications to become Solicitor General? The answer would be yes- she has a JD (from prestigious law school) and that is the only requirement I know imposed on the Solicitor General. Sidenote: according to Pacelle, when the office of the SG was created in the 1800s, the JD requirement was shifted from the AG to the SG, beginning the SG’s eventual shift into what the AG is in name.
When I ask if she is qualified, what I mean to decide is if she makes a reasonably effective Solicitor General based on the complex, and often conflicting, set of responsibilities tasked upon the her office. First, the SG has to make strategic decisions on the behalf of the government in non-partisan cases. I say non-partisan only insofar as the Executive will always take the same position and the most famous example of this position would be standing (in case you didn’t already know, the federal government nearly always opposes expanding standing against a government program).
The role of lead government litigator is a difficult one but could be done by a wide variety of people considering the caliber of attorney staffing the OSG. The President and AG will typically avoid giving the SG explicit directives but there is always in implicit pressure to not argue contrary to a President’s stated objectives. The SG has to balance its obligation to the President with its institutional integrity at the Supreme Court.
Finally, and I think probably least importantly, is the SG’s role as an appellate advocate. The SG will rarely write any briefs (that duty is left to assistants and deputies) and will just as rarely argue before the Supreme Court. The most recent SG’s have had varying levels of prior experience arguing before the Court.
I’ve identified the most notable qualifiers for each of the Solicitor General’s through the Eisenhower administration. Again, what I consider to be a reasonable qualifier is subjective but I’ve tried to be as objective as possible in defining a qualifying experience is any experience in the Supreme Court or as a high-level government attorney.
Elena Kagan – Associate White House Counsel to President Clinton, SCOTUS clerk (Marshall)
Gregory Garre- 4 years as Assistant SG, 3 years as Principal Deputy SG, SCOTUS clerk (Rehnquist)
Paul Clement – 3 years as Principle Deputy SG, SCOTUS clerk (Scalia)
Theodore Olson – 12 arguments in SCOTUS, worked in OLC during Reagan admin.
Seth Waxman - Previous experience as Principle Deputy SG
Drew Days – 8 years as head of the NAACP LDF, including a famous win in Fulilove v. Klutznick
Kenneth Starr – 5 years as DC Circuit judge, SCOTUS clerk (Burger)
Charles Fried – Deputy SG, SCOTUS Clerk (Harlan)
Rex Lee – >12 arguments in SCOTUS, SCOTUS Clerk (White)
Wade McCree – 10 years as judge on Sixth Circuit.
Robert Bork –
Erwin Griswold – Member of SG’s office under SG Hughes
Thurgood Marshall – Several arguments as member of NAACP LDF
Going back further than that is fruitless because the nature of the office has changed so significantly and the relevant qualifications are certainly not the same. For example, a SCOTUS clerkship is now considered far more important than it was in the 1940s and 1950s.
I don’t know if Kenneth Star had any experience before the Supreme Court. He worked in private practice at Gibson Dunn before becoming a federal judge. Robert Bork worked in private practice for almost 10 years before heading to Yale Law School.
Kagan did work at Williams and Connelly for two years (1989-1991) after her clerkship with Justice Marshall. Even though she’s never argued before a Court in her career, her time at Williams and Connelly likely provided some basic level of experience in handling the intricacies of a case.
Its pretty telling that we have to dig this deep to find trial experience for our government’s lead appellate advocate. A two-year stint as an associate doesn’t seem like an impressive line on the resume for this position, but SG is also more of a strategic actor than a lawyer working in the (gilded-gold) trenches.
More important than her trial experience is her judgement when it comes to gauging legal arguments before the Court. There are more than enough brilliant lawyers working in the SG’s office who can file motions and give oral arguments, but her judgement will seriously influence the most important and subtle arguments that get filed in the most grave cases.
In all, I’d say she is “less qualified,” by objective measures, than our most recent Solicitors General. She doesn’t have any experience litigating cases, only commenting on them from an academic position. Her experience in government came as a domestic policy advisor to the President, not as a member of any litigation team. Though she is “less qualified” with regard to some of her past experiences, the glowing recommendations that she received from the likes of Lawrence Tribe and several past SGs suggests that she has the knowledge and expertise to excel as Solicitor General.
I should probably mention that, despite everything I’ve said above, I still supported her nomination. I probably wouldn’t have nominated her, but as a candidate I would have voted to confirm her. Her relative effectiveness or readiness to perform the duty of SG is debatable, but there can be no question that she has shown a relative competence sufficient to perform her job.