The Case For Chuck Cooper As Solicitor General

In my recent story about the process of selecting a solicitor general, I offered ample praise for Chuck Cooper, one of the two finalists. I noted his “amazing résumé” (including a Supreme Court clerkship, which longtime readers know I’m obsessed with); his decades-long, “distinguished career in government and private practice”; and his founding of Cooper & Kirk, “which has risen to prominence as one of the nation’s leading litigation boutiques.”

I did highlight the two aspects of Cooper’s record that I viewed as the biggest challenges to his confirmation should he be nominated: his work on Hollingsworth v. Perry, aka the Proposition 8/California gay marriage case, and his work on the Bob Jones case back in the 1980s, concerning tax exemptions for private schools that discriminate based on race. I concluded, however, that neither issue would be a dealbreaker in terms of Cooper winning confirmation.

One reader felt that I was not as generous in my praise of Chuck Cooper as I should have been. This reader, a former colleague of Cooper’s, sent me a detailed message offering firsthand knowledge of what Cooper is like as a lawyer and a person. I thought this message was excellent, so I have reprinted it below (with minor editing, approved by the correspondent).

I thank this reader for his or her insights — and encourage others with information about the solicitor general selection process, the Justice Department transition effort more generally, or the interviewing of Supreme Court candidates to contact me, by email or by text message (646-820-8477). Thank you.

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I consider your take on Chuck Cooper as candidate for Solicitor General to be unfairly begrudging. In my view, you’ve not done justice to Chuck’s singular talents, accomplishments and qualifications. Those alone – quite apart from his connections – should put him at the top of a short list of Republican lawyers who might be Solicitor General for the incoming Administration.

To be clear, my perspective is very much informed by my personal experience working with Chuck. He’s not only a former colleague of mine but a valued friend. That said, I’m currently a Biglaw partner who has no particular dog in any fight between SG finalists. Moreover, I’m no fan of the incoming Administration. While politically moderate, I lean left – I’m a registered Democrat, a devoted supporter of President Obama, and a donor to Hilary Clinton, and I have been discomforted (to say the least) by the outcome of the latest Presidential election. I’m writing to you simply because I want to help you paint a more complete picture of Chuck, especially for the sake of readers who may not know much about him apart from what they’ve gleaned here, and perhaps in coverage of the Proposition 8 litigation.

As to the latter, I can well understand why you and others might hold against Chuck his role in the Prop 8 litigation. Few litigations have been as socially divisive and potentially hurtful as that one was. It’s only to be expected that a legal advocate might be judged in light of what was at issue and at stake there. Fair enough. What I’d say in defense of Chuck was that he came to that litigation with good faith and principle. In his sincere view, the U.S. Constitution had never been understood to codify a right to same-sex marriage and never should be so understood, unless and until amended; recognition of same-sex marriage would thus be left for voters to decide. Those who’re passionately aligned on the other side should at least recognize that Chuck’s view is one long shared by a number of prominent, respected conservative lawyers, including four justices of the Supreme Court (as of Obergefell) and Ted Olson in his younger days.

As for the Bob Jones case, that transpired well before my time. My understanding, however, was that Chuck’s stance came down to his understanding of the IRS’s legal authority, period and full stop. If Chuck didn’t think the IRS had any basis in federal law to be revoking tax-exempt status for a particular educational institution, then he’d be outraged by any such attempt, regardless of how well justified it might otherwise seem. That goes for an institution committed to racial discrimination, but it also goes for one that’s committed to opposing President Trump, to promoting Muslim causes, you name it.

Indeed, I can attest that Chuck is thoroughly devoted to drawing principled constitutional lines, regardless of who (or what party) may benefit from them in a particular case. Chuck’s gone to war (and won) on behalf of Democratic officials in cases that were hotly controverted politically, because those clients were on the correct side of the law. In one especially memorable instance, he walked through lines of protestors who condemned him as a “Communist” simply because his side of the caption had the wrong political polarity: in 2004, Chuck successfully defended Puerto Rico’s popular vote, in favor of Aníbal Acevedo Vilá as Governor-elect, in the face of a post-election challenge seeking to discard certain ballots cast (Ted Olson and Miguel Estrada were on the opposing side).

That brings me to my #1 reason for cheering the prospect of Chuck Cooper as Solicitor General. For those of us who may be apprehensive (at best) about the President-elect, one big fear is that he’ll pay no heed to constitutional constraints or principle. Against that backdrop, we should thank our lucky stars if Chuck becomes SG. I find it ironic that you reference concern about “destabilizing to the rule of law” in describing what Chuck did in the Bob Jones case. There, I think you may be deriving the wrong lesson, especially in our present circumstances. Anyone who knows Chuck, or has litigated with or against Chuck, knows he is deeply committed to the rule of law and highest principles as he sees them. When it comes to upholding the rule of law, Chuck Cooper may be rigid for some tastes, but he is an immovable rock for any who’d disregard it. So I honestly would sleep better at night knowing that Chuck is the one holding the final pen and then standing up when representing the United States government before our highest court.

Although the rest seems trivial by comparison, I have to question several of your other particulars. Maybe I hang out in the wrong “rooms full of legal nerds,” but those I’ve frequented would not have been in “disbelief” at the prospect of Chuck being SG under a Republican President. In fact, I have it on good authority that Chuck was the runner-up to Paul Clement after Ted Olson stepped down during George W. Bush’s second term. The alums who’ve graduated from Cooper & Kirk (formerly Cooper, Carvin & Rosenthal) include leading lights among conservative lawyers, including two whom you’ve recently covered: Rachel Brand (reportedly slated to be Associate AG) and Noel Francisco (reportedly slated to be Principal Deputy SG). It’s no mere coincidence that such distinguished apples fall from Chuck’s tree. And, yes, his alums also include two sitting U.S. Senators, Ted Cruz and Tom Cotton. Those two’s politics may not be everyone’s cup of tea (including mine), but their legal prowess coming out of Cooper & Kirk should be beyond question.

Then there are Chuck’s Supreme Court arguments. Chuck has argued seven times before the Court, more than any of the other three SG finalists you’ve discussed. One of his cases was Clinton v. City of New York, in which Chuck successfully challenged the line-item veto. Another was United States v. Winstar, in which Chuck successfully paved the way for a succession of banks to recover large losses that they suffered after the United States encouraged them to take over failed thrifts during the savings-and-loan crisis, then reversed course. Beyond that, he was set to argue a seminal First-Amendment challenge to campaign-finance regulation of electioneering communications in 2003, McConnell v. FEC, on behalf of the NRA. That didn’t happen only because a broader coalition of challengers effectively froze out the narrower position that Chuck wanted to press – to the effect that the prohibition against corporate electioneering should at least stop short of preventing nonprofits from using their individual donations to fund political speech. Had he been permitted to make that argument at the podium, our campaign-finance jurisprudence might have followed a different, less controversial course than it later did in Citizens United. Apart from the U.S. Supreme Court, the bread and butter of Chuck’s docket has been arguing questions of governmental authority (both for and against the government), and most of those have constitutional dimension. Along the way, he’s set precedents across more appellate tribunals than we could hope to count, including state supreme courts and the U.S. Courts of Appeals.

Finally, having been fortunate to see the best of the best in action, several of the most celebrated Supreme Court practitioners of our times, I can say that Chuck belongs in that rarefied company. Few can drill down on and unpack the key questions, discern and develop the best lines of argument, craft winning narratives, and make legal prose sing the way that he can. But you don’t need to take my word for that. Liberal lawyers whom I hold in the highest regard have expressed to me similar opinions about Chuck. They’ve had strong disagreements with Chuck, of course, but they were uniformly impressed by him and, as a rule, had considerable affection for him. I haven’t heard of that consensus changing.

In sum, Chuck is one of the finest and most principled lawyers you’ll ever encounter. He would be a superb Solicitor General of the United States.

Earlier: The Latest In The Solicitor General Sweepstakes
A Deep Dive Into The Department Of Justice Transition
An Exciting New Entrant In The Solicitor General Sweepstakes
Who Will Be The Next U.S. Solicitor General?

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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 [email protected].