Learned in the Law

In a blog post Wednesday about Solicitor General-designate Elena Kagan, we invoked the oft-repeated chestnut that the solicitor general is the only position whose occupant is required by statute to be "learned in the law."

Well, not quite. A careful reader alerted us to 2 U.S.C. Sec. 288(a)(2), which states that the counsel and deputy counsel of the U.S. Senate also "shall be learned in the law." 

Live and learn. But did former solicitor general Seth Waxman once make the same mistake we did? In a 1998 speech he gave on the history of the solicitor general's office, Waxman said the solicitor general is "the only officer of the United States required by statute to be learned in the law."  The speech is deemed so authoritative that the text can be found on the official Web site of the solicitor general. 

It appears Waxman was technically correct. Senators and Senate staff are not regarded as officers of the United States, while those who toil in the executive branch and in the judiciary are. So, as framed by Waxman, his assertion was right. (A quick search of the U.S. Code indicates no other specific job carries the same requirement, though under 18 U.S.C. Sec. 3005, those accused of treason and other federal capital crimes are supposed to be represented by at least one counsel "learned in the law" relevant to capital crimes.)

We reached out to the current Senate counsel, Morgan Frankel, who declined comment except to say, "If I am learned, I got learned at Yale."

Comments

[G]

One L. Hand, J., would have had a particularly easy time with this requirement.