UPDATE ON CURRENT APPELLATE DEVELOPMENTS
(Posted September 19, 2017) Here are a few tidbits from the appellate world that have caught my eye lately.
New Solicitors General
The Senate today confirmed Noel Francisco as the 47th Solicitor General of the United States. The vote was 50-47, and while I haven’t seen an official listing, I strongly suspect that it was a straight party-line vote, or something close to that. Francisco has been serving as the Acting Solicitor General for eight months, since being appointed Principal Deputy three days after the President took office.
The SG is the highest-ranking practicing lawyer in the federal government. His boss, the Attorney General, is an administrator who doesn’t actually practice law, but the SG actually walks into the well of the Supreme Court and intones, “May it please the Court …” The position is so influential and so respected that the SG is often described informally as “the tenth justice.” This reflects the fact that when the Supreme Court wants the government’s views on litigation in which the United States is not a party, it often issues a call for the views of the solicitor general (abbreviated CVSG), and the court respects the resulting brief. Litigants often clamor to get amicus support from the SG.
Being eagle-eyed, you will have noted my use of the plural in the header for this section. The Solicitor General of Virginia, Stuart Raphael, stepped down last month to return to private practice after crafting a remarkable body of appellate advocacy on behalf of the Commonwealth. His deputy, Trevor Cox, is the Acting Solicitor General, but in my mind, the adjective is unnecessary; he’s our Solicitor General for now. In case you’re wondering, we are indeed in very good hands.
Once upon a time, before I was able to create an exclusively appellate practice, I daydreamed about being the solicitor general. Since then, I’ve come to realize that Messrs. Francisco and Cox don’t live in a perfect world, no matter how much you enjoy handling appeals. The Solicitor sometimes has to take positions and defend causes that he finds morally repugnant or analytically indefensible, because that’s the government’s position. (Stuart Raphael has assured me that it doesn’t happen very often, and I believe him.) In those cases, you suck it up and do your job. But my position is much happier: I can just say no.
As a parting gift, I’ll leave you with this bit of Solicitor General trivia. Only one person has ever served as both Solicitor General of the United States and as President: William Howard Taft was the nation’s chief advocate from 1890-92 under President Benjamin Harrison. He reached the Oval Office in 1909, and as most of you already know, was appointed Chief Justice of the United States in 1921.
A bountiful crop of writs
The Supreme Court of Virginia convened writ panels in late August, and a few days after that, it started raining writs. From August 30 to September 12, the clerk issued 15 of them.
There’s always an uptick in writs right after panels convene, for obvious reasons. This number does give me pause, though, in one small respect. I’ve always heard that the court doesn’t segregate the grants from the refusals and issue them separately. Put another way, there’s no relation between the amount of time that elapses from argument to order, on the one hand, and success or failure on the other. But if that were true, then you’d expect to see a steady stream of writs over a period of several weeks, not a clump of them all at once like this.
One possible explanation for this is that Clerk of Court Trish Harrington’s staff has been especially diligent with this batch, and all of the orders – good and bad – are getting processed quickly.
The justices began hearing arguments this morning in the Supreme Court’s September session. They heard six sets of arguments today. They’ll hear six more tomorrow, five on Thursday, and two on Friday.
Once, not long ago, the court began its sessions on Mondays and went all the way through Fridays. Of course, back then they were hearing 30 or more arguments in a week, so the extra day made sense.
The shift to a Tuesday start is more recent; it came just within the last few years. My best guess is that this allows the justices who don’t live in the Richmond area to use Monday for travel, instead of devoting Sunday to their official duties. (Now that Justice Kinser has retired, the gross miles traveled are way down anyway.) The longest trip by far for any member of the court is Justice McClanahan, who travels from her home in the Abingdon area, probably on the order of five hours’ drive.
One last point: You’ve probably wondered why the court has a short concluding day – just two Friday arguments – instead of adding those to an earlier day and wrapping up sooner. On this, I don’t know the answer; I only have that virtually useless tool, idle speculation, to draw upon. One possible reason is that the court has more to do during session week than just listen to you arguing against the Bad Guys. They have administrative duties, too, and the extra time allows them to spend part of Friday wrapping those up as well. And maybe – just maybe – some of the decision conferences get heated and require a bit more deliberations. I’ll admit that I’m rooting for this one.