Congratulations To The Next Solicitor General
Has the stalemate between New York and D.C. been resolved?
George T. Conway III (left) and Charles J. Cooper (right)
UPDATE (6:25 p.m.): This prediction is completely wrong; Chuck Cooper just withdrew himself from solicitor-general consideration!
Now that we have a Senate-confirmed attorney general — Senator Jeff Sessions was confirmed to the post last night, 52-47 — we can move on to the next top Justice Department job up for grabs: Solicitor General of the United States.[1]
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When we last checked in on the solicitor general sweepstakes, the field had narrowed to two (very impressive) contenders: D.C. lawyer Charles “Chuck” Cooper, and New York lawyer George T. Conway III. I characterized it at the time as a standoff but noted that Cooper had more momentum, given his integral role in preparing Senator Sessions for his (successful) confirmation hearings.
It seems that this momentum is about to carry Cooper over the finish line. Here’s a report from Liz Goodwin of Yahoo News (via Amy Howe of SCOTUSblog):
Conservative lawyer Chuck Cooper has emerged as Donald Trump’s likely pick to be the nation’s next solicitor general, three sources say. As the nation’s top advocate, Cooper would be charged with defending legal challenges to U.S. laws and Trump’s executive orders, such as the suit against Trump’s travel ban that is currently wending its way through the courts.
Cooper is a longtime friend of Trump’s attorney general nominee, Sen. Jeff Sessions. Cooper, a fellow Alabaman, helped prepare Sessions for his confirmation hearing in front of the Senate Judiciary Committee last month, which was seen as a success by those in Trump’s orbit.
Sessions has decided he wants Cooper for the job, and according to one source close to the White House, Trump has agreed to let Sessions choose the solicitor general, who represents the federal government before the Supreme Court.
Chuck Cooper speaking at the National Press Club (via YouTube)
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For more background on Cooper, see our earlier story, The Case For Chuck Cooper As Solicitor General. It seems that this case proved persuasive to the White House as well as Jeff Sessions.
Goodwin properly notes a caveat that applies to all Trump personnel choices: “Though Sessions has chosen Cooper for the job, Trump could change his mind at the last moment and veto the pick.” Recall how President Trump kept us guessing about his Supreme Court nominee, right up until the start of the Bachelor-style rose robe ceremony at the White House.
Speaking of SCOTUS, the Supreme Court selection process might have had an impact on the SG pick. Because another Sessions ally, Judge Bill Pryor, quickly fell behind the two frontrunners, Judge Neil Gorsuch and Judge Thomas Hardiman, Jeff Sessions didn’t have to divide his political capital in Trumpworld between two of his fellow Alabamians. Instead, he could — and apparently did — place all of his chips on Chuck Cooper.
Even though it’s not yet official and DJT could still change his mind, I would be very surprised if Chuck Cooper does not get the nomination in the end. Yahoo’s report is consistent with everything I’ve been hearing from my own sources over the past few days. (I’ve reached out to the Justice Department, Chuck Cooper, and George Conway, but I have not yet heard back from any of them; if and when I do, I will update this story.)
So provisional congratulations to Chuck Cooper, and good luck to him in the confirmation process. He does face some potential obstacles, such as his work on controversial cases like Bob Jones University v. United States (tax benefits for discriminatory schools) and Hollingsworth v. Perry (Prop 8/gay marriage in California) — but as I’ve written before, I don’t see them as dealbreakers. If Betsy DeVos can win confirmation as Secretary of Education, then surely an advocate as experienced and eminently qualified as Chuck Cooper can win confirmation as solicitor general.
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UPDATE (5:03 p.m.): I’ve received pushback from sources claiming that this isn’t quite a done deal — so maybe Chuck Cooper shouldn’t start measuring the drapes at OSG just yet.
UPDATE (6:25 p.m.): This prediction is completely wrong; Chuck Cooper just withdrew himself from solicitor-general consideration!
[1] Three other top jobs at the DOJ already have nominees. Late last month, the Trump Administration announced its intention to nominate Rod Rosenstein for deputy attorney general, Rachel Brand for associate attorney general, and Steven Engel for assistant attorney general for the Office of Legal counsel. The White House’s January 31 announcement confirmed what we had reported weeks earlier, on January 13. You read it first on Above the Law!
Chuck Cooper emerges as Trump’s likely choice for solicitor general [Yahoo News]
Washington attorney Charles Cooper likely to get nod as U.S. solicitor general [SCOTUSblog]
Earlier: The Case For Chuck Cooper As Solicitor General
The Latest In The Solicitor General Sweepstakes
An Exciting New Entrant In The Solicitor General Sweepstakes
Who Will Be The Next U.S. Solicitor General?
A Deep Dive Into The Department Of Justice Transition
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
