‘Tenth Justice’ Not Likely for Several Months

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By Kimberly Strawbridge Robinson

The hunt for a new U.S. solicitor general has been slow and chaotic this time around, according to David Lat, the founder of the legal blog Above The Law.

The solicitor general represents the federal government before the U.S. Supreme Court, and is sometimes referred to as the Tenth Justice.

It’s extraordinary that the Trump administration hasn’t already announced its nominee for this important position, Neal Katyal, formerly the acting solicitor general, told Bloomberg BNA.

Part of the delay may be explained by the unusual withdrawal of President Donald Trump’s first choice for the job, Chuck Cooper, Lat told Bloomberg BNA in an e-mail.

Once a nominee is announced, he or she may not be able to take office for several months, Lat said. The administration will likely focus on other consequential legal confirmations first, like the one for the Supreme Court itself, he said.

Until then, Noel John Francisco, a Supreme Court regular while at Jones Day, Washington, will serve as the acting solicitor general. Trump appointed Francisco to be the principal deputy solicitor general.

That makes sense, given that he’s the only political appointee in the solicitor general’s office, except for the SG himself.

The Frontrunners

The SG process has been a bit slower than usual, Lat said.

“For example, in the Bush administration, by this time we already had a nominee, Ted Olson,” he said.

The process has also been “a bit more chaotic than usual, with the surprising withdrawal” of Cooper, even though “it seemed he finally had the nomination in the bag,” Lat said. Cooper said he wasn’t willing to subject his family and friends to the contentious confirmation process.

Though the “SG process has not been as leak-prone as some other selection processes in the Trump administration,” Lat said there are suspected frontrunners.

They include George Conway, a partner at Wachtell, Lipton, Rosen & Katz, New York, and the husband of Trump adviser Kellyanne Conway , as well as two Supreme Court veterans, Kannon Shanmugam, of Williams & Connolly LLP, Washington, and Christopher Landau, of Kirkland & Ellis LLP, Washington, according to Lat.

“It’s possible others are under consideration as well,” Lat said. But the “candidates whose names have been floated for SG are all very impressive and talented lawyers,” he said.

“In light of how Trump has turned to some individuals with limited experience when filling other posts in his administration, it’s nice to see veteran advocates in the running for SG,” Lat said. “Shanmugam and Landau are both prominent Supreme Court lawyers, and Conway, while not a regular at the court, is also a seasoned appellate advocate,” he said.

Long Wait

Once Trump decides who he is going to tap for the SG position, it could still “take several months to get someone confirmed,” Lat said.

The process for Trump appointees has generally proceeded slowly, and the administration has other prominent legal positions to fill, Lat said.

The Supreme Court confirmation of Neal Gorsuch will go first, he said. But other top jobs at the Department of Justice need nominations or confirmations, Lat said. Those include the “deputy attorney general, associate attorney general, and assistant attorney general for the Office of Legal Counsel.”

“I do not expect a new SG before the April arguments before the Court, and I would not be surprised if we don’t have a new SG until after the end of the Term,” Lat said.

The April arguments are the last of the Supreme Court’s term, which typically ends in June.

Day One

Until then, Francisco will lead the SG’s office.

The attorneys in the office other than the SG and principal deputy are all career attorneys, often serving under more than one administration, Katyal, now of Hogan Lovells US LLP, Washington, said.

Unlike the SG, the principal deputy doesn’t need to be confirmed and so can start on Inauguration Day, Katyal said.

Second Chance

That’s what Katyal did when he joined the SG’s office as the principal deputy under President Barack Obama.

But unlike Francisco, he didn’t serve as the acting solicitor general—at least not when he first started at the beginning of Obama’s term.

The temporary job went instead to long-time Deputy Solicitor General Edwin Kneedler, who was more familiar with the office and had argued many more Supreme Court cases, Katyal said.

Kneedler has worked in the SG’s office for nearly 40 years, and argued more than 100 cases before the high court.

Elena Kagan was later confirmed as SG, but when she was picked to join the Supreme Court about a year later, Katyal took over as the acting SG.

Changing Tunes?

When Donald B. Verrilli Jr. was confirmed as solicitor general, Katyal returned to the important post of principal deputy solicitor general. That’s likely what Francisco will do, too.

One of the most important tasks of the principal deputy is to serve as an “interlocutor” between the office and the White House, Katyal said.

The SG’s office doesn’t typically switch litigation positions when a new administration takes office, he said. So the principal deputy has the job of explaining to the White House why the government shouldn’t do so in cases that could end up making bad headlines, Katyal said.

For example, he noted that he defended high-profile Bush officials for alleged abuses in the war on terror while serving as the acting SG in Ashcroft v. al-Kidd, 563 U.S. 731 (2011).

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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