Who Will Be The Next U.S. Solicitor General?

Handicapping the field of legal superstars in line for a coveted post.

SCOTUS Supreme Court photo by David LatSolicitor General of the United States: a great legal job, or the greatest legal job? The post of SG, the federal government’s leading lawyer before the U.S. Supreme Court, has a colorable claim to that second title. 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.

Solicitor General is one of the juiciest plums to be doled out by the Trump Administration. When I attended the Federalist Society National Lawyers Convention last month, the halls buzzed with speculation about who the next SG might be.

I previously mentioned Williams & Connolly partner Kannon Shanmugam, a prominent SCOTUS litigator and former clerk to the late Justice Scalia, as one possibility. He gets mentioned, along with several other candidates, in this very interesting piece by Tony Mauro:

“It’s the dream job of any appellate lawyer,” said King & Spalding partner Bobby Burchfield, whose name has been mentioned as a possible nominee, among others….

Speculation ebbs and flows depending on other dynamics within Trump’s transition team and his nascent administration. When Jones Day partner Donald McGahn II was named as White House counsel, the fortunes of two other Jones Day partners who have been widely mentioned as possible SGs — Noel Francisco and Michael Carvin — seemed to rise.

Here’s what I’ve been hearing from my sources (many of whom I saw at last month’s delightful Fed Soc conference). As of now, the two top contenders for Solicitor General are Noel Francisco and his fellow Jones Day partner, Gregory Katsas (who is actually not mentioned in Mauro’s article).

Both Francisco and Katsas are experienced, highly regarded litigators. Both have argued before the Supreme Court, with three oral arguments apiece. Francisco’s cases might be more high-profile than Katsas’s cases — Francisco prevailed in McDonnell (the appeal of the former Virginia governor) and Noel Canning (the Recess Appointments case), and even though Katsas argued in NFIB v. Sebelius (aka Obamacare), he handled just the Anti-Injunction Act issue — but both lawyers’ records are impressive.

Both have prior federal government service: Francisco served in the Office of Legal Counsel and the White House Counsel’s office, and Katsas served in the office of the Associate Attorney General (including a stint as Acting Associate Attorney General) and in the Justice Department’s Civil Division. Both clerked for the Supreme Court — Francisco for Justice Kennedy Scalia, Katsas for Justice Thomas. Both possess excellent pedigrees: Francisco has two U. Chicago degrees (undergrad in 1991, law in 1996), and Katsas is an alum of Princeton (1986) and Harvard Law (1989).

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And, very importantly, both are partners at Jones Day, which right now seems to be the pipeline into legal jobs in the Trump Administration. Not only is Jones Day the former firm of incoming White House Counsel Don McGahn, but a number of JD lawyers are heading up the DOJ transition — including, it should be noted, Greg Katsas.

What about Michael Carvin, also a Jones Day partner? He has lots of experience as a SCOTUS advocate, with eight arguments to his credit, and he’s also regarded as brilliant. But some think he’s too colorful and controversial, at least if the Administration wants a quick and easy confirmation (and we also hear that he might not even want the job). Furthermore, Carvin is approaching 60, and the Republican legal establishment might want someone a little younger. Serving as SG is fabulous for one’s résumé — just ask Justice Elena Kagan — so it might be more beneficial to give the job to someone who will be on the scene a little longer.

What about Bobby Burchfield, also mentioned by Mauro? He’s an excellent litigator, but more of a trial lawyer focused on commercial and antitrust cases as opposed to an appellate lawyer. By virtue of his work for the RNC, he has a powerful friend in incoming White House chief of staff Reince Priebus — but Burchfield will probably wind up in another top job, not SG.

Who else is in the running, according to Mauro?

Christopher Landau of Kirkland & Ellis, whose colleague Brian Benczkowski is on the transition team for the U.S. Department of Justice, has also been mentioned for the job. Benczkowski worked for Sen. Jeff Sessions, R-Alabama, who is likely to play a role in making the pick. Erin Murphy, a newer Kirkland partner, a former Bristow Fellow at the SG’s office and a protege of former SG Paul Clement, could also be in the mix for the same reason. Benczkowski did not respond to a request for comment.

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Landau is “in the mix,” our sources say. He’s a leading SCOTUS advocate; a 1989 graduate of Harvard Law, so in the prime of his career (like Francisco and Katsas); and a former Supreme Court law clerk (to two justices, both Justice Scalia and Justice Thomas).

The arrival of former SG Paul Clement at Kirkland, when the firm absorbed the Bancroft boutique, put Landau in a somewhat awkward position — still titular head of K&E’s appellate practice, but a little in Clement’s shadow. Landau would surely welcome the chance to make a graceful, and even triumphal, exit.

Erin Murphy is also a SCOTUS star — see my prior profile of her, A Young Superstar Makes Her Supreme Court Debut — but she’s too young for the job. She graduated from Georgetown Law only in 2006 (before going on to clerk for Judge Diane Sykes, one of my favorite Trump shortlisters, and Chief Justice Roberts).

My sources tell me that Murphy might be in the running for a different great gig: Principal Deputy Solicitor General, the Hand of the King in the Office of the Solicitor General. This job is, as noted by Mauro, the only other political appointment in the OSG other than SG itself (meaning that the remaining lawyers in the office, about 20 of them, are “career” lawyers who can and do serve across administrations).

The post of Principal Deputy typically goes to a rising star in the legal firmament — past Principal Deputies include Chief Justice John Roberts, Judge Sri Srinivasan of the D.C. Circuit (who probably would’ve become Justice Srinivasan had Hillary Clinton won), WilmerHale partner Seth Waxman, Hogan Lovells partner Neal Katyal, and the aforementioned Paul Clement. And the Principal Deputy often ends up at some point as the Acting Solicitor General or even the actual Solicitor General (see, e.g., Waxman, Clement, Katyal, and the current Acting SG, Ian Gershengorn). So it’s quite desirable as a consolation prize.

More names from Mauro:

Other possible candidates with experience in the solicitor general’s office include Kannon Shanmugam of Williams & Connolly, Miguel Estrada of Gibson, Dunn & Crutcher, Thomas Hungar, former deputy SG and a former Gibson Dunn partner who now is general counsel for the U.S. House of Representatives. Gibson Dunn partner Helgi Walker has also been mentioned in legal circles.

All four are former Supreme Court clerks: Shanmugam for Justice Scalia, Estrada and Hungar for Justice Kennedy, and Walker for Justice Thomas. (See my 2004 lament about how ex-SCOTUS clerks get all the great jobs.)

Estrada is regarded as one of the finest appellate advocates in the country, but query whether the former D.C. Circuit nominee would want to undergo another confirmation hearing (when he could just remain at GDC and make millions, which we hear he enjoys doing). Also, some Republican lawyers weren’t fans of Estrada’s vocal support for confirming Judge Merrick Garland to the Court.

Shanmugam, Hungar, and Walker are all very well respected, and certainly under consideration — but for whatever reason, they aren’t generating as much buzz right now as Francisco and Katsas. Also, Hungar took the House GC job just a few months ago, and it might make sense for him to remain in that role for longer (especially when pulling someone out of private practice is so easy).

And finally:

If Trump wants a more outside-the-Beltway perspective, he could choose Scott Keller, the current SG of Texas, and John Bursch, a former Michigan SG who has gone into private practice.

Trump does like outside-the-Beltway types — see his first and second Supreme Court lists — so Keller and Bursch are certainly possibilities. Like Erin Murphy, Scott Keller is a superstar, but young — when he argued the landmark abortion case of Whole Woman’s Health before SCOTUS earlier this year, he was only 34. Like Murphy, Keller — also a former SCOTUS clerk, for Justice Kennedy — would make an excellent Principal Deputy. (Had Ted Cruz been elected president, Keller — a Cruz protégé and former chief counsel to the senator — would have had a stronger shot at becoming the Solicitor General.)

So that’s the current state of play in the Solicitor General sweepstakes. Have we left anyone out, included anyone who has no shot, or otherwise erred? Please let us know.

If you have information about who might be getting what job in the Trump Administration — whether at the Justice Department, the White House Counsel’s office, or the legal department of an agency — feel free to email (subject line: “Trump Transition”) or to text (646-820-8477). We look forward to your tips.

P.S. If you enjoy fiction and are interested in the Office of the Solicitor General, check out The Advocate’s Daughter, an excellent thriller by Supreme Court lawyer Anthony Franze, starring a protagonist who’s an OSG alum. This novel would make a wonderful holiday gift for the high-powered lawyer or law student in your life. Other SCOTUS-related books that would be superb possible presents (disclosure: the authors all participated in a Supreme Court Book Forum that Tony Mauro moderated earlier this year): Notorious RBG, by Irin Carmon and Shana Knizhnik; Allegiance, by Kermit Roosevelt; Tuttle in the Balance, by Jay Wexler; and Supreme Ambitions, by yours truly. (All links are affiliate links.)

UPDATE (12/12/2016, 2 p.m.): Adam Feldman takes a closer look at the possible SG nominees over at Empirical SCOTUS.

Who’s in the Mix to Serve as U.S. Solicitor General? [National Law Journal]

Earlier: A Great Legal Job, Or The Greatest Legal Job?
Biglaw Partner To Be Trump Administration’s White House Counsel


DBL square headshotDavid 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.