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April 15, 2010

High Court Nomination For '10th Justice' Would Be Rare

By Lawrence Hurley
Daily Journal Staff Writer
WASHINGTON - If Elena Kagan replaces Justice John Paul Stevens on the U.S. Supreme Court, as many expect, she would join a select group of former solicitors general who have gone on to be justices.

It's surprisingly rare for a solicitor general to be appointed to the court. The last time it happened was in 1967, when Lyndon B. Johnson nominated Thurgood Marshall to the court. Marshall remains one of only two sitting solicitors general to have been nominated. The other was Justice Stanley F. Reed, appointed to the court by President Franklin D. Roosevelt in 1938.

Kagan, who clerked for Marshall, could be the third, if President Barack Obama picks her and the Senate confirms her.

Other possible candidates reportedly on the White House's radar include Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Judge Diane P. Wood of the 7th Circuit and Jennifer Granholm, the governor of Michigan.

Judge Sidney Thomas of the 9th Circuit has also attracted some interest, according to some reports.

Aside from Marshall and Reed, there were two other Supreme Court justices who served as solicitor general, but they were not in that position when appointed to the court. They were Robert H. Jackson and William Howard Taft. Robert H. Bork, whom President Ronald Reagan unsuccessfully nominated to the court in 1987, had been solicitor general during the Nixon and Ford administrations.

Experts, including those who have served in the Office of the Solicitor General, don't all agree as to why sitting solicitors general don't get nominated more often.

"I don't think there's any particular reason," said Theodore B. Olson, the Gibson Dunn & Crutcher partner who served as solicitor general during the George W. Bush administration. He added that "it's a logical place" for the White House to look when there's a vacancy on the court.

Most experts agree that one reason solicitors general haven't had more luck in the past is that it is a job in which the incumbent can come into conflict with the White House over how to approach cases at the Supreme Court, thereby threatening that person's chances of getting nominated.

Secondary considerations include the fact that someone coming straight from the Office of the Solicitor General would be forced to recuse from a large number of cases involving the federal government during his or her first term.

As the administration's advocate before the Supreme Court, solicitors general provide the justices with the federal government's official view on a myriad of legal issues.

Veterans of the Office of the Solicitor General and others familiar with the way the office works say that this can lead to solicitors general butting heads with the White House over the way cases should be pursued.

Such conflicts can then harm their chances of getting nominated if a vacancy on the Supreme Court arises.

"That can be a very contentious office," said Lee Epstein, a professor at Northwestern University School of Law in Chicago. "They can make a lot of enemies in the Justice Department and White House."

Differences can emerge over whether to file petitions or even whether to file amicus briefs in certain cases, she added.

Some believe Kenneth W. Starr's hopes of serving on the Supreme Court were dashed by internal conflicts. He served as solicitor general during the George H.W. Bush administration but was passed over in favor of David H. Souter when Justice William J. Brennan Jr. retired in 1990.

Makan Delrahim, a Los Angeles-based shareholder at Brownstein Hyatt Farber Schreck who has served as a Republican staffer on the Senate Judiciary Committee said Starr was "certainly groomed and would have been a fantastic candidate."

Starr, the outgoing dean of Pepperdine University School of Law, was snubbed in favor of Souter apparently because some in the administration thought he wasn't conservative enough, according to reports, although that perception was based in part on his record as a judge on the U.S. Court of Appeals for the District of Columbia before he became solicitor general. He could not be reached for comment.

Conflicts within an administration rarely become public, but it was reported that Olson clashed with then-White House Counsel Alberto Gonzales over his stance on affirmative action when he was serving as solicitor general. In 2003, Olson wanted to take a harder line when two cases concerning the University of Michigan's admissions policy arose, but Gonzales successfully petitioned for a more nuanced stance, according to reports. The court ended up endorsing the university's law school admissions policy while invalidating the undergraduate admissions system. Grutter v. Bollinger, 539 U.S. 306 and Gratz v. Bollinger, 539 U.S. 244.

Olson said Wednesday that disagreements do occur but that ultimately, as in the affirmative action cases, the administration "took the position that the president wanted." He also noted that at that time he had no expectation of being nominated to the Supreme Court if a vacancy occurred.

The episode is a sign that "problems can arise when a solicitor general wants to take a position that the White House counsel or president does not want for a political reason," Delrahim said.

A second possible reason solicitors general don't get nominated more often is likely because a new justice coming from the position of solicitor general would be forced to sit out cases on which he or she worked before being nominated, experts said. That constitutes a significant portion of the Supreme Court's docket, especially as it would include cases in which the government files an amicus brief.

Justice Marshall recused himself in 98 of the 171 cases the court heard during his first term in 1967-1968, according to Lawrence S. Wrightsman, a psychology professor at the University of Kansas who has written about the Supreme Court.

So far, the court has granted 11 cases for next term. Of those, three directly involve the federal government.

"That would be a downside in the short-term," Epstein said. "But it's a pretty short-term downside."

Delrahim said the prospect of recusals is "definitely a concern for the president" but he agreed that the focus would be more on the long-term benefits of nominating a particular candidate.

Experts also point to other reasons why solicitors general don't get appointed to the court. One is the trend in recent years to appoint experienced judges. On the current court, all of the justices served as judges.

Another is that the White House often looks outside Washington in order to respond to political considerations, such as a preference for a certain race, gender, religion, or place of origin.

Lisa S. Blatt, a partner at Arnold & Porter who spent 13 years as an assistant to the solicitor general, said she could think of no overriding reason why solicitors general have not been appointed more often. She served under six of them, including Olson.

Blatt also pointed out that Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. both served in the Office of the Solicitor General, albeit not in the top job. Historically, a number of justices occupied other senior positions at the Justice Department before being nominated.

Blatt doubts Kagan's current position as the so-called "10th Justice" would be a hindrance when President Obama makes his decision.

"I think it's appropriate for the president to nominate someone who has been solicitor general and not a judge," she said.

So far, Kagan has argued six cases this term, and no positions her office has taken have attracted major controversy. For her first few months after taking office in March 2009, Kagan was bound by the positions taken by the Bush administration on cases already before the court.

Georgetown's Harris said Kagan has been "extremely capable" at oral argument. But after only a year as solicitor general "it's too soon to tell" how effective she has been, Harris added.