The Role of the Solicitor General
posted by Dave Hoffman
We here at Concurring Opinions occasionally provide an important service for our readers: we analyze uber-left-blog-Dailykos’ views on the legal system so you don’t have to.
Armando of Dailykos, who I have previously criticized here, has a new post up on the role of the Solicitor General’s Office. Armando appears to be taking on Ed Whelan’s short argument in the National Review that Judge Alito’s SG wiretapping memo’s were advocacy pieces on behalf of his administration. But on closer examination, Armando’s argument sweeps quite farther than that.
Armando quotes extensively from David Strauss’ article on the SG’s office, which had questioned the commonly-expressed institutionalist account of its role. He (Armando) appears drawn to the institutionalist view – holding that the SG should be and is somewhat independent of the White House. [Where is he on the Days-Clinton dispute, I wonder?] But, he argues, the executive branch has soiled this role by politicizing the SG [whatever that means] and by appointing more partisan lawyers to the job. [He cites to a book by Rebecca Salokar that I have not read.] Armando does not distinguish between employees of the office and the SG him/herself. He then continues:
Alito was chosen to be in the Reagan Justice Department and the Reagan Solicitor General’s office BECAUSE he believes the things Ed Meese believes. [Ed: How does Armando know this?] So yes, he was acting as an advocate for Reagan Administration legal policies, but he was chosen to advocate for them because he believes in those policies. So looking at the opinions he expressed and positions he advocated for while serving in the Reagan Justice Department and in the Solicitor General’s office is not only fair, it is perhaps the fairest approach we can take. After all, it was in those roles that we likely heard Alito’s true views. While a sitting judge, bound by precedent, Alito’s true views were muted at best, and masked at worst. [This sounds lovely. What does it mean?]
So, to sum up, Armando argues that as early as the 1980s the SG’s office was a mere extension of the White House political directorate, and that SG lawyers writing memoranda supporting administrative positions always personally supported those positions, by virtue of their status as SG employees. While Judges, actually appointed by the President in a nakedly political process, somehow are bound by “precedent”. This is an odd position considering Armando’s previous writing that embraced a cynical type of legal realism. I wonder if readers of this blog with personal experience in the SG’s office would agree with the picture of it drawn by the most popular blog on the planet.