Legal Times has confirmed that Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, will serve as principal deputy solicitor general, the office’s No. 2 spot, starting Tuesday.
Katyal's appointment is another strong signal of President-elect Barack Obama's intentions to depart sharply from the terrorist detention and interrogation policies of the Bush administration. In Hamdan, the Supreme Court found that the Bush administration's military commissions for trying suspected terrorists violated the Uniform Code of Military Justice and the Geneva Conventions. The case, which marked Katyal's first appearance before the high court, was a stinging rebuke to the president's broad assertion of wartime power.
The pick also means the Justice Department's Office of the Solicitor General could be led by two lawyers who have argued a combined two cases before the Supreme Court. Earlier this month, Obama announced the nomination of Elena Kagan, the dean of Harvard law School, to be solicitor general. Kagan, who has never argued before the high court, has received broad support in the legal community. A date for Kagan's confirmation hearings has not been set.
An interesting aside: The Boston Globe, in this Jan. 6 story, noted that Kagan's most influential scholarly writing was a 2001 defense of the Clinton administration's assertion of the right to direct federal regulatory agencies without congressional or court involvement. Kagan argued that without centralized powers, agencies would suffer from "ossification syndrome."
When her article was published in the Harvard Law Review, Katyal was among her critics. Kagan "invites the question of whether the vantage point of an administration that wants to get things done is the proper one for setting parameters in constitutional and administrative law," wrote Katyal, according to the Globe.
The principal deputy is also known as the the "political deputy," though, as Legal Times pointed out in this 2005 story, the exact nature of the job is a matter of dispute. Some principal deputies have been pegged for White House moles, while others have defended the office's positions when they were at odds with the administration's.
Katyal has argued one other case before the Court, Engquist v. Oregon Department of Agriculture, which held that a worker cannot bring an equal protection claim as a “class of one” in a public employment context. He was also lead counsel for the State of Louisiana in its petition for Rehearing in Kennedy v. Louisiana, which invalidated the death penalty for child rapists whose victims survive. The state petitioned the Court for a rehearing this summer, after a military law blogger pointed out that Congress had passed a law in 2006 allowing the death penalty for child rapists under military law, a fact that was omitted in all the briefs filed in the case. The Supreme Court denied rehearing. Katyal was also co-counsel on another SCOTUS case, Hawaii, et al. v. Office of Hawaiian Affairs, et al., which is set for hearing on Feb. 25. Williams & Connolly's Kannon Shanmugam will be arguing the case.
From 1998 to 1999, Katyal (Dartmouth, Yale Law) served as then Deputy Attorney General Eric Holder Jr.s national security adviser in the Justice Department. He was Vice President Al Gore's co-counsel in the Supreme Court election dispute of 2000, and he represented the deans of most major private law schools in the landmark University of Michigan affirmative-action case Grutter v. Bollinger in 2003.
Katyal clerked for Supreme Court Justice Stephen Breyer and Judge Guido Calabresi of the U.S. Court of Appeals for the 2nd Circuit. Click here for an extended list of Katyal's published works, honors, and experience.