DÉJÀ VU – ANOTHER NEW SOLICITOR GENERAL

 

[Posted October 6, 2008]  Two months ago, I posted an essay to let you know about a then-pending changing of the guard at the office of the Commonwealth’s Solicitor General.  Bill Thro left that post on September 1 to serve as general counsel to Christopher Newport University in Newport News (which is much closer to Bill’s home on the Peninsula than is the AG’s office in Richmond).  Bill’s former chief deputy, Steve McCullough, stepped up to the SG’s position that same day.

 

Now comes news that a similar change has taken place in Washington, as former Acting Solicitor General of the United States Gregory Garre has been confirmed by the Senate to take over the job on a permanent basis (well, it’s permanent at least until January 20, when a new President may well appoint a wholly new Attorney General and Solicitor General).  Garre, an extremely bright man and a very capable and experienced appellate advocate, has served as Acting SG since Paul Clement stepped down in June.

 

The Solicitor General is the second-highest ranking official in the Justice Department (behind only his boss, the Attorney General), and represents the United States in litigation before the United States Supreme Court.  That includes all cases in which the United States is a party, but it also includes those cases in which the government seeks to intervene, or to file a brief amicus curiae.  The latter class of cases is particularly important; the Solicitor General is exempted by Supreme Court Rule 37 (4) from the requirement of obtaining the consent of all parties before filing a brief.  Accordingly, this is an extraordinarily crucial role for an attorney.  The Solicitor General of the United States is informally described as “the tenth Justice” for good reason, as the Justices are usually eager to hear his views on any given case.

 

Once upon a time, I regarded the position of Solicitor General to be my dream job – nothing but briefing and arguing appeals, full-time.  That was back in the days when I still handled trial work, and longed for more appellate work.  Now that I have shifted my practice to exclusively handling appeals, I have come to recognize the big advantage I have in the private sector over either of these Solicitors General: I can say no if I want to.  It has occurred to me on several occasions how disquieting it must be to be compelled by your job duties to advocate a position you personally and profoundly disagree with.  This is not to say that private appellate lawyers never take unpopular cases – we all do, from time to time, particularly if the issues are especially important – but at least those of us in the private sector can make up our own minds, instead of having our position imposed by fiat from above.