Solicitor General as "Dr. No"

Any part of the legal career of the late Thurgood Marshall would have made him a legend. But he often said that serving as solicitor general of the United States (from 1965 to 1967) was the best job he ever had. Three more recent SGs -- Paul Clement, Drew Days, and Kenneth Starr -- concurred last night at a panel discussion on the role of the SG. Serving "at the crossroads of the separation of power," said Clement, was a high honor -- a sentiment echoed by the others. The SG, Starr said, is part of "a conversation that is continually underway" among the branches of government over their respective powers.

Justice Anthony Kennedy hosted the Dec. 8 event held in the Supreme Court chamber, and Justice Sonia Sotomayor was in the audience along with nearly 200 other history buffs. The former SGs spoke for this year's "National Heritage Lecture," an event jointly sponsored by the Supreme Court Historical Society, the United States Capitol Historical Society and the White House Historical Association. The historical groups take turns hosting the event, and last night's was at the Court, also co-sponored by the Robert H. Jackson Center.

In introducing the event, Kennedy paid tribute to Clement, Days, and Starr, who have argued 51, 26, and 36 cases before the high court respectively. "I can't tell you how important it is for us to have really excellent attorneys" arguing, Kennedy said. The moderator, Kenneth Geller of Mayer Brown, was once deputy SG and has argued 40 cases himself.

Arguing before the Supreme Court, the SGs agreed, is just the "tip of the iceberg" of the job. A less visible, but enormous part of the SG's responsibility is serving as gatekeeper or traffic cop for the large body of litigation involving the United States as it goes through the appeals process.

Days, SG from 1993 to 1996, said he felt like "the Dr. No" of the Clinton administration, often telling government agencies that he would not bring their appeals of bad lower court opinions to the Supreme Court. Starr, who served from 1989 to 1993, said he had "underestimated the job" before taking it, not realizing how much time he would spend in "conflict resolution," mediating between competing government entities that took opposite sides on pending cases. Clement, who was SG from 2005 to 2008, also said it was a "very difficult balancing proposition" to preserve the independence of the solicitor general's office while also recognizing that he was part of the executive branch, reporting to an attorney general who reported to the president.

Clement offered an example of the tension in an apparent reference to his decision not to take any position for the U.S. in the landmark eminent domain case Kelo v. City of New London in 2005. In a then-Republican administration, Clement said, it would have been a popular move for him to side with the property owners fighting eminent domain. But in the overall scheme of things, he said, "the government is a taker, not a takee," so it would not have been in the government's long-term interest to argue for "a robust takings clause."

Asked by Geller to reveal their most difficult moments at the lectern, Days and Starr both told stories about the late Chief Justice William Rehnquist. Days said that Rehnquist's classic question to advocates, namely "what is the best case for your position," often left him "dumbstruck." And Starr recalled an instance when he was arguing and Rehnquist leaned forward, with a look of "ghastly alarm," to ask him if he wanted the Court to overturn a particular case. "I had never heard of the case," Starr confessed. But without missing a beat, Starr told Rehnquist that "absolutely, emphatically," he was not asking the Court to overturn the ruling.

Comments

[George Bernard]

I will make it a point to find out more about Thurgood Marshall, as I knew comparatively little until now. Thank you for providing soem enlightenment regarding his standing.