Solicitors General: Above the Fray?

September 29, 2008 | | Comments Off on Solicitors General: Above the Fray?

Last week former Solicitor Generals Paul Clement and Walter Dellinger kicked off the annual Supreme Court Preview with a discussion, co-sponsored by ACS, about whether and how the Solicitor General can stay above the political fray.

Intro to the Solicitors General

Paul Clement began by explaining what the Solicitor General does. In addition to playing a crucial role in selecting cases for appeal on behalf of various government agencies, and choosing which theory of a case the United States should endorse, he is essentially the lawyer for the government in the Supreme Court, and as such. Clement gave the example of the conflicting position the Board of Prisons and the DOJ Civil Rights Division tend t to take on similar questions, and it is up to the SG (subject to direction by the White House) to decide which position best reflects the values of the federal government in general. Walter Dellinger offered a complicated series of tie-breaking rules to consider, including how long a particular agency had taken a particular position, and the principle that, whenever possible, the SG will defend congressional laws, even when the Executive branch may disagree with the policy preference therein made. Dellinger also offered an example from his experiences where he warned the executive branch that calling their legislation “the line item veto” was a bad idea and that they might as well call it the “unconstitutional line item veto”, or his personal recommendation “the discretionary budget authority act.”

A great deal of the discussion revolved around whether political neutrality was, for the SG, a means or an end. That is, does the SG generally maintain political neutrality in order to more effectively advocate for the position of the President (as in, choosing to pursue only the positions most likely to win in the Court even if that means forgoing more appealing ideological choices) or is political neutrality an independent ideal of the SG’s office (such as might be the case in the Department of Justice, which is officially an executive agency, but which the public expects to conduct itself with a great deal of independence from the White House).

Interestingly, the panel did not seem to come to a clear conclusion on this issue. Dellinger observed that the SG works directly for the President, who, in turn, works directly for the People. Clement suggested that pure policy questions (presumably after the tie breaking rules have been applied) should be directed to the White House, but the White house should, generally, not second guess the SG on legal decisions. Both panelists agree that tactics are enormously important, because unlike other trades, in the Supreme Court it is very possible to lose more than you set out to win.

In the end, both panelists seemed to endorse a kind of golden rule for the SG’s office – reasonable, tempered, and good faith arguments will protect the SG’s credibility with the Court and thereby enable the SG’s office to best serve the President.


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