Department of Justice, Solicitor General's Office, Supreme Court

The Latest In The Solicitor General Sweepstakes

It's a two-person contest -- and it has been for weeks....

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George T. Conway III (left) and Charles J. Cooper (right)

George T. Conway III (left) and Charles J. Cooper (right)

“It’s Game of Thrones, The Apprentice, and Survivor, all mixed into one.” That’s how a senior Trump transition aide described the transition process as a whole to Politico. And based on what I’ve learned about the Department of Justice transition effort, it seems apt for what’s going on at the DOJ.

There will always be multiple power centers in a presidential administration and in a transition, but the Trump transition effort seems especially divided. If you talk to people working on the transition, they use “New York” and “D.C.” as shorthand for competing camps, just as one might refer to, say, “King’s Landing” and “Winterfell” on Game of Thrones.

Who will sit on the Iron Throne on the fifth floor of Main Justice? Who will be our nation’s 47th Solicitor General? While consensus is emerging on other top jobs at the DOJ, the process of picking the next SG is stuck in a stalemate right now — and who emerges victorious will depend in large part on whether D.C. or New York prevails.

(Note: I’m taking the same approach in this story that I took in my report from this morning on the DOJ transition more generally. I’ve spoken to many sources for this piece but they all requested total anonymity, so I’m telling this story as an omniscient narrator, taking my sources’ info and insights and treating them as my own. (I did reach out to the four main SG contenders mentioned in this piece; they all declined to comment or didn’t get back to me.) My sources might be wrong, of course. If you think they are, contact me by email (subject line: “DOJ Transition”) or by text (646-820-8477); I’d love to hear from you.)

In my initial report on the Solicitor General sweepstakes, I mentioned two top candidates: Noel Francisco and Greg Katsas, both highly regarded partners at Jones Day, the law firm that helped Donald Trump make America great again. In a subsequent report, I identified a third contender: Wachtell Lipton partner George T. Conway III.

(Fun fact, at least for me as a Filipino-American: both Conway and Francisco are of Filipino ancestry, Conway on his mother’s side and Francisco on his father’s side. #PinoyPride)

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My understanding has changed greatly since that earlier report. The two finalists are George Conway and Chuck Cooper, the D.C. power lawyer and Jeff Sessions confidante who’s playing a major role in the DOJ transition right now, after successfully shepherding Sessions through his confirmation hearings.

Before turning to Cooper v. Conway, let’s discuss where Noel Francisco and Greg Katsas are headed. Both have done just fine for themselves in the Trump Administration.

Noel Francisco will be the principal deputy solicitor general, the Hand of the King in the Office of the Solicitor General. This is the second-highest post in the Office of the Solicitor General (“OSG”), and the only other political appointment (the other OSG posts are career positions). Because the PDSG post is not a “PAS,” or “presidential appointment with Senate confirmation,” Francisco can start work at OSG immediately after inauguration.[1]

(Francisco’s selection might be disappointing news for Erin Murphy, Scott Keller, and other young stars of the SCOTUS bar. But they shouldn’t be too upset; he has a few years on them, and their futures remain bright.)

Greg Katsas will be deputy White House counsel. This makes perfect sense, given that the incoming White House counsel is Katsas’s friend and fellow Jones Day partner, Don McGahn (who was recently voted our 2016 Lawyer of the Year).

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Why didn’t Katsas take a Main Justice spot? I’m guessing he wanted a new challenge, having spent some eight years (2001-2009) in several top DOJ posts, including assistant attorney general for the Civil Division and acting associate attorney general. SG was one of the few Justice Department jobs that might have tempted him.

And it seems, based on what I’m now hearing, that Katsas was not as serious a candidate for SG as I (and others) initially thought. It seems that it has been a two-man race for a few weeks, between George Conway and Chuck Cooper.

Now, if you told a room full of legal nerds last year that the SG race was going to come down to George Conway and Chuck Cooper, nobody would have believed you. Although both are tremendously talented attorneys and more than qualified to serve as solicitor general, they do not fit the traditional mold of a solicitor general: a fixture of the Supreme Court bar, quite often with past experience in the OSG (such as the names floated by Tony Mauro last month). Conway has argued just one case before the Court, and with one prominent exception discussed below, Cooper hasn’t argued before SCOTUS since the 1990s.

But then again, if you told a room full of political nerds last year that Donald J. Trump was going to be our next president, nobody would have believed you either. So it makes a certain amount of sense that Conway and Cooper are the finalists. As noted before in these pages, they are both extremely well connected: George Conway is the husband of Kellyanne Conway, a senior adviser to President-elect Trump, and Chuck Cooper is a close friend of Jeff Sessions, the incoming attorney general. And in Trumpworld, connections matter.

In this sense, both Cooper and Conway are a bit more “personal” and “political” (as opposed to “legal”) than the typical SG pick (although note how Ted Olson became President George W. Bush’s first SG after successfully arguing Bush v. Gore). As Lincoln Caplan, author of The Tenth Justice: The Solicitor General and the Rule of Law (affiliate link), explained to me, “Both George Conway and Chuck Cooper have strong legal credentials and a straight-face argument can be made on behalf of either one, but each more closely fits the SG-as-mouthpiece model than the model of the SG-as-counselor-to-the-Court.”

Kellyanne Conway, George Conway, and their twins (via Kellyanne Conway's Twitter feed)

Kellyanne Conway, George Conway, and their twins (via Kellyanne Conway’s Twitter feed)

I’ve written extensively about Conway before, so I don’t have too much to add today. Although he doesn’t have much SCOTUS experience, he’s a phenomenal lawyer, praised for his talents on both sides of the aisle.

In terms of whether he’ll get the job, his greatest strength might be his greatest weakness: the Kellyanne factor. Kellyanne Conway, former campaign manager and current senior adviser to Donald Trump, clearly has DJT’s ear; they call her the “Trump whisperer” for a reason. But picking her husband as solicitor general could raise charges of quasi-nepotism, i.e., picking someone for a professional post based on personal reasons. People love to hammer Trump over such matters — and some might frame appointing George Conway as SG as a threat to the DOJ’s and the OSG’s traditional independence of the White House.

But this doesn’t seem insurmountable. Connections will always matter in life, for better or worse; what matters is whether the person is qualified to do the job, and Conway certainly is. (And Conway’s main competition, Chuck Cooper, is also in the finals because of personal ties, just to a different figure in the administration.)

Another possible obstacle for Conway: his covert work on Paula Jones’s sexual harassment lawsuit against President Bill Clinton, which culminated in the Supreme Court case of Clinton v. Jones. Republicans won’t have a problem with this, but some Democrats might. It’s not clear, though, how this could be turned into an actual issue. The only way to do it would be to try and claim some ethical breach — one of Conway’s law partners at the time, Bernie Nussbaum, had worked in the Clinton Administration as White House counsel — but as Wachtell Lipton concluded, there was no actual conflict.

Charles J. Cooper

Charles J. Cooper

Let’s now turn to Chuck Cooper. Like the other SG finalists, he has an amazing résumé. After graduating first in his class from the University of Alabama School of Law, where he also served as editor-in-chief of the law review, Cooper clerked for the Supreme Court, for then-Justice William H. Rehnquist. Over the ensuing decades, he has enjoyed a distinguished career in government and private practice. He served in the Justice Department, in both the Civil Rights Division and the sublimely prestigious Office of Legal Counsel (which he led as assistant attorney general), and he worked in Biglaw, as a partner at McGuire Woods and Shaw Pittman (now part of Pillsbury Winthrop). He then launched Cooper & Kirk, which has risen to prominence as one of the nation’s leading litigation boutiques.

The biggest factor in Cooper’s favor: his close friendship with incoming attorney general Jeff Sessions, his fellow Alabamian, University of Alabama law school graduate, and Reagan-era DOJ lawyer. Cooper played a key role in prepping Sessions for his hearings. After Sessions’s hearings concluded so successfully, Cooper’s stock in Trumpworld went way up — to the point where he was basically redoing the Trump DOJ org chart (and writing himself in as SG).

The biggest factor against Cooper: controversy. Or controversies, plural.

First up: gay marriage. The one case that Chuck Cooper has argued before the Supreme Court in recent years was quite controversial: Hollingsworth v. Perry, a challenge to Proposition 8, California’s ban on gay marriage. Cooper argued in defense of the ban, at multiple levels of the federal judiciary and ultimately before the U.S. Supreme Court. In June 2013, SCOTUS ruled that the proponents of Prop 8 (Cooper’s clients) lacked standing to appeal the district court’s order invalidating the ban, which as a practical matter ended up legalizing gay marriage in California.

Even though marriage equality is now a nationwide reality, thanks to the Supreme Court’s ruling in June 2015 in Obergefell v. Hodges, some LGBT groups might oppose Cooper because of his involvement in the Prop 8 litigation. They might also seize upon his taking the position, as head of the Office of Legal Counsel in 1986, that the federal government could reject job candidates with AIDS based on fear of contracting the disease.[2]

Next up: the Bob Jones litigation. In 1982, as a young lawyer in the Civil Rights Division of the DOJ, Chuck Cooper helped get the Reagan Administration to reverse a decade-long federal policy of denying tax exemptions to segregated private schools. One such school: Bob Jones University, a conservative religious school that did not admit African-American students until 1971 and then, after being forced to admit them, imposed a ban on interracial dating and marriage among students.

This issue percolated up to the Supreme Court — and that’s when things got crazy, as recounted by the New York Times:

The Reagan Administration made public today a 52-page brief filed with the Supreme Court that provides detailed legal arguments for granting tax exemptions to private schools that discriminate on the basis of race.

One of the three lawyers who signed the brief, however, told the Court in a footnote that he personally disagreed with the Administration’s position and noted that the Administration had taken the opposite position in a brief he filed on its behalf in September.

Yup, that’s right: the Office of the Solicitor General was ordered to sign and file a brief that it basically “dissented” from — a brief arguing in favor of giving tax breaks to schools that discriminate. Chuck Cooper and his then-boss, civil rights division chief William Bradford Reynolds, signed the brief and actually meant it. The political appointees prevailed over the career lawyers in the OSG, forcing the federal government to change its position before the Supreme Court — something that the government is loathe to do, because it’s destabilizing to the rule of law and also just plain embarrassing.

In the end, SCOTUS ruled 8-1 against Reynolds and Cooper, holding that the First Amendment doesn’t prohibit the IRS from revoking the tax-exempt status of a religious university with racially discriminatory policies. The case was Bob Jones University v. United States, which some of you might remember from either Tax or Con Law class.

This might seem like ancient history — it went down in 1982-83 — but it counts as a huge controversy, even scandal, in the history of the OSG (and gets a chapter devoted to it in The Tenth Justice). Some OSG types I spoke with were deeply troubled — to put it mildly — by the idea of Chuck Cooper winding up as head of an office that he caused such aggravation and embarrassment.

But Cooper’s problems, like Conway’s, are also not dealbreakers in terms of winning confirmation. Now that Obergefell is the law of the land, as acknowledged even by President-elect Trump, nobody seems terribly worked up about marriage equality. And Chuck Cooper has a powerful new card to play if opponents try to make his Prop 8 work into an issue: his views on the issue have “evolved,” a la President Obama’s, thanks in large part to his daughter coming out to him — and then marrying another woman. Chuck Cooper not only supported his daughter’s wedding, but even helped plan it.

The Bob Jones case is a more serious and substantial issue, but here’s the good news for Cooper: it’s old, and it’s complicated. Some Supreme Court litigators and OSG types are a mixture of horrified and embarrassed over the prospect of a protagonist from that drama, a black mark on the history of the office, winding up as the head of the division. But as we learned during the 2016 election, what strikes fear into the hearts of elites isn’t necessarily what resonates for Joe Sixpack. And as we saw in the case of Jeff Sessions, there’s a statute of limitations on such things. If the American people (as represented by their senators) don’t care about the allegations against Jeff Sessions from the 1980s — allegations that are much easier to explain to the public — it’s hard to see why they’d care about a Supreme Court brief from more than 30 years ago.

I’ve heard that Cooper and Conway have been the finalists for solicitor general for quite some time, and there hasn’t really been much change on that front (unless you count Cooper’s stock rising in the wake of the Sessions hearings). It’s not clear how this stalemate, a standoff between D.C. and New York, will be resolved.

There was some brief exploration of a possible compromise candidate — perhaps a more traditional SG candidate, like the veteran SCOTUS litigators and OSG alumni mentioned by Tony Mauro, or a certain prominent federal judge who would leave the bench to take the job (just as Thurgood Marshall did). For whatever reason, such buzz seems to have died down, leaving us where we’ve been for weeks now.

Despite having an older sister who’s a longtime federal appellate judge, Donald Trump probably has no clue about what the heck a solicitor general is. But if the impasse between New York and D.C. cannot be resolved, the big man might have no choice but to educate himself, climb back into the reality TV trenches, and preside over The Apprentice: Solicitor General Edition.

UPDATE (7:25 p.m.): I’m having fun imagining the tasks or challenges for such a show. Who can give the strongest argument in a SCOTUS moot court? Who can do the best job editing the most merits briefs in the shortest amount of time? Who is the fastest at reviewing applications for leave to file an affirmative appeal?

UPDATE (1/14/2017, 12:35 p.m.): Per Ariane de Vogue of CNN, Conway and Cooper are the finalists, but “[o]thers are jockeying for the job and the situation is fluid, according to sources close to the transition.”

UPDATE (1/15/2017, 9:45 a.m.): The SG selection could have interesting implications for the process of picking of a SCOTUS nominee (which is well underway; President-elect Trump has started interviewing candidates).

UPDATE (1/15/2017, 5:53 p.m.): A reader who felt this post was not completely fair to Chuck Cooper has submitted a rebuttal, which I was pleased to post: The Case For Chuck Cooper As Solicitor General.

[1] Yes, D.C. people love their abbreviations — e.g., OSG, PAS, SCOTUS, and DAG (not to confused with the much lower-ranked DAAG). I like how Anthony Franze puts it in this passage from his great Supreme Court thriller, The Advocate’s Daughter (affiliate link): “It wasn’t the Office of the Solicitor General, it was OSG…. A case wasn’t dismissed as improvidently granted, it was DIG-ed. There was the GVR (granted, vacated, and remanded) and the CVSG (the court calling for the views of the solicitor general), and the list went on. An ivory tower version of annoying teenage text-speak.”

[2] As Eliza Gray — who wrote for Above the Law before going on to a tremendous career in journalism, by the way — explained in the New Republic, Cooper’s position on rejecting job candidates with AIDS can be framed (and defended) in technical legal terms, based on “a strict reading of the law as written – the law prohibited discrimination against people on the basis of a physical handicap… but it didn’t say anything about a fear of contagion, which as a legal matter, was something else entirely.”

‘It’s Game of Thrones, the Apprentice, and Survivor all mixed into one’ [Politico]
Who will be the next ’10th justice’? [Volokh Conspiracy / Washington Post]
Reagan Advisers Missed School Case Sensitivity [Washington Post]
Top Lawyer Dissents In Brief On Tax Exemptions [New York Times]
Charles Cooper: The Other Superlawyer in the Gay Marriage Case [New Republic]

Earlier: 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?

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.

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