A Great Legal Job, Or The Greatest Legal Job?

A wide-ranging discussion about the post of U.S. Solicitor General, which some consider to be the best legal job in the United States.

I spent last weekend in Chicago for the 2015 ABA Annual Meeting. It was a funny time to be in the city because the Annual Meeting, which draws almost 5,000 lawyers, took place at the same time as the Lollapalooza music festival. At the Hyatt Regency, lawyers wearing dark suits — yes, even on the weekend — rubbed shoulders with sweaty twentysomethings in denim shorts and flip-flops.

I was at the Annual Meeting to appear on two panels to talk about my legal novel, Supreme Ambitions (affiliate link). But while at the conference I also got to catch up with old friends (it seems like tout le monde attends), network with new friends, and attend other sessions.

One of the most interesting panels I attended was Supreme Advocate: Solicitors General Reflect on the Supreme Court As It Was, Is, and Will Be. It featured five very distinguished panelists, including the current SG and three former SGs:

For those of you who are not familiar with the position of U.S. Solicitor General, the job of the SG is to represent the federal government before the Supreme Court of the United States. The work is extremely important and extremely interesting, making it one of the most coveted legal jobs in America. Former SG Thurgood Marshall described it as “the best job I’ve ever had” — and yes, that includes his service as an associate justice of the U.S. Supreme Court.

(See also Don Verrilli, who has said that “every solicitor general has described this as the greatest legal job one could have, and it certainly has been for me.” And Verrilli — a former SCOTUS clerk, Biglaw partner (at Jenner & Block), high-ranking Justice Department official, and deputy White House counsel — has also had some pretty amazing jobs in law.)

So how does one secure this amazing legal post? Lincoln Caplan began the discussion by asking the panelists to talk about how they wound up in the position. A common theme: you need a stellar legal résumé and some major connections.

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For Don Verrilli, the process of applying for the job was a little awkward because the people involved in making the decision were his colleagues — at the time he threw his hat into the ring, he was working in the White House as deputy White House counsel. For Ted Olson, connections also helped and complicated matters — he was on the White House’s radar screen because he has successfully represented President George W. Bush in Bush v. Gore, but that also made confirmation more challenging because some Democratic senators didn’t like his involvement in that case.

Drew Days benefited from connections as well: he knew then-Attorney General Janet Reno because they had previously worked together on a civil rights case out of Miami when he was assistant attorney general for civil rights in the Carter Administration and she was a Florida prosecutor. When he interviewed with President Bill Clinton for the position, Clinton asked him, “What is the relationship between the president and the solicitor general?” Days said, “You are in the Constitution and the solicitor general is not.” Clinton seemed to like that answer, and Days got the job.

For Verrilli, Days, and Olson, the SG position was a dream job that they actively pursued; as Verrilli put it, when he was asked if he’d be interested, he paused for “a nanosecond” before saying yes. For Ken Starr, who was serving at the time as a judge on the very powerful and prestigious D.C. Circuit, it was a different story. He loved being a judge and he loved life tenure, so he resisted initial approaches from the White House. But when it became clear that the attorney general and the president wanted him specifically as SG and viewed it as a call to serve the country, he acceded.

What does being SG involve once you’re there? Arguing for the government at the One First Street lectern is “just the tip of the iceberg,” as Verrilli put it. The solicitor general edits every brief filed in the Supreme Court by the twenty or so lawyers in the SG’s office. The SG must authorize any appeal filed by the government after it loses in the lower court — and because the federal government loses about 2,000 times a year, this responsibility is heavy. And the job involves politics as well: the SG must decide what the position of the United States will be in every case before the Supreme Court in which the federal government takes a position. This can be a delicate and complicated matter when different agencies of the executive branch are arguing for different positions (e.g., the State Department versus the Defense Department).

The solicitor general himself — or herself, in the case of Elena Kagan — personally argues before the Court a few times each Term. The rest of the cases are argued by the deputy solicitors general, who argue about five cases a Term, and the assistant solicitors general, who argue two to three cases a Term. The SG will also watch the lawyers in his office when they argue. When he was solicitor general, Ted Olson made a point of going to every argument in which his office made an appearance because he wanted to learn — how best to argue cases, what worked and what didn’t, and what the justices wanted out of advocates. The justices told Olson that they appreciated his attending the arguments — “and I very soon became addicted to it,” he said.

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It is a practice that Don Verrilli maintains today. When Verrilli started as SG, Justice Antonin Scalia told him, “Ted used to come to all the arguments — and we appreciated that.” Point taken, Your Honor.

Moving away from the day-to-day duties and toward the big picture, Lincoln Caplan asked the panelists: what about the independence of the Office of the Solicitor General? In other words, how much leeway should the SG have to formulate government positions without being controlled by the attorney general or the president?

This is an issue that every SG must wrestle with, according to Verrilli, and where exactly the balance is struck will depend upon the individual SG and his or her relationship with the president. Verrilli said that as a former White House lawyer who is a known quantity to the folks at 1600 Pennsylvania Avenue, he has enjoyed a significant amount of discretion: “they’ve left me alone, and I’ve taken advantage of that.” His approach is to identify the two to three cases each Term where he might be taking a surprising position and call the White House to say, “this is what I’m doing” — not to ask permission, but more of a heads up.

Ken Starr pointed out that there is nothing inappropriate about the SG being overruled by the president on what position to take before the Court. After all, as set forth in Article II of the Constitution, executive power rests with the president. A few times over the years, presidents have been personally involved in deciding what position their administration would take in a particular case. (This was reportedly what happened in the famous Bakke case involving affirmative action, in which President Carter made the call for the federal government to support affirmative action.)

The solicitor general must follow the directives of the president, of course, but as an officer of the Court, the SG also owes certain duties to the Court, including an obligation to provide honest, open advocacy. The SG also aids the Supreme Court in doing its job by helping to winnow petitions for certiorari and seeking or supporting SCOTUS review only in cases that truly deserve it. As Starr pointed out, a big (and tough) part of the SG’s job is saying no when some agency wants to seek Supreme Court review of an adverse ruling. If the SG does his job right in this regard, then the justices will view his recommendations with credibility and follow them often. According to Verrilli, the rate of certiorari grants in cases where cert is supported by the SG’s office runs around 90 percent.

As reflected in how some refer to the SG as “the tenth justice,” the influence of the solicitor general over which cases the Supreme Court decides to hear, and how it decides those cases, is therefore considerable. But is not, of course, unlimited; at the end of the day, the nine remain supreme, and they won’t hesitate to rule against the government.

“I consulted with the nine justices,” said Ted Olson, “and they were not aware of a tenth justice.”

Supreme Advocate: Solicitors General Reflect on the Supreme Court As It Was, Is, and Will Be [American Bar Association]
Lawyers plus writing ambitions equal well-attended ABA Annual Meeting showcase event [American Bar Association]
Supreme Ambitions At The ABA Annual Meeting [Supreme Ambitions]