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.
December 26, 2005 at 11:49 am
Posted in: Privacy (National Security)
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Responses (27)
KipEsquire - December 26, 2005 at 1:53 pm
So what’s the alternative exactly? Have the OSG become comparable to the Federal Reserve?
We already have an independent head of an independent judiciary: The Chief Justice.
I really don’t understand Armando’s point.
Stuart - December 26, 2005 at 6:35 pm
Armando is just wrong on the facts about the SG office. Most of the lawyers there are “career” lawyers, not hired for political reasons. Alito was in that category, though Roberts wasn’t. The SG himself (or herself) IS a political appointee, but even then it doens’t quite come out the way you might think: the SG’s job mainly is to defend the US govt’s position, which often requires defending the constitutionality of statutes. Any particular administration may disagree with a statute, but my understanding is that it’s very rare that the SG’s office will say a federal statute is unconstitutional.
Orin Kerr - December 26, 2005 at 11:35 pm
It’s also worth noting an important factual error: Alito was hired for his position in the SG’s Office by President Carter’s SG Wade McCree, not by the Reagan Administration. Link to source here. He was a political appointee at OLC starting in ’85, but was in a career civil servant spot at the SG’s office before then.
Dave Hoffman - December 26, 2005 at 11:56 pm
Thanks for the reference, Orin, I hadn’t read the VC today (shame on me, obviously).
I don’t understand Armando’s point either. I’m not even sure I understand the institutionalist argument itself all that well, apart from its functional (i.e., persuasive) component.
Armando - December 27, 2005 at 2:22 pm
Suart argue that most of the lawyers at the SG’s office are careeer lawyers.
Charles Fried describes the office as being smaller and more intimate thant Suart seems to believe:
“Democrats are making an issue of the document, which was released Wednesday by the National Archives, because they say it proves Judge Alito advised the Reagan administration in crafting legal arguments against Roe v. Wade. Mr. Fried ultimately rejected Judge Alito’s recommendations on how to approach the case, and the brief he submitted to the high court did not contain Judge Alito’s name.
“This is a real red herring because the solicitor general’s office is a small one,” Mr. Fried said. “We all helped each other and looked over each other’s work. He had no formal role in writing that brief, and I can’t imagine anything sillier than someone taking credit for a brief where that’s the role they had.”"
Sounds a little less bureaucratic than Stuart seems to indicate.
Armando - December 27, 2005 at 2:24 pm
I posted two other comments that were published and now seem to have disappeared.
Is there a filter that controls posting?
Armando - December 27, 2005 at 2:25 pm
The comments were posted at 2:01 and 2:06 EST respectively.
ajs23 - December 27, 2005 at 2:30 pm
I also saw Armando’s earlier comments that are now gone. Curious.
Dave Hoffman - December 27, 2005 at 2:32 pm
Armando’s earlier comment, which was sent to mediation as spam and which I can’t seem to get back, read:
“Mr Hoffman:
I argue for no view on what the Solicitor General’s office SHOULD be.
I argue for what I perceive it TO be.
Your call out for folsk who klnow shows that, at the least, you are, apparently, agnostic on the issue.
And why this quarrels with my view that everyone is a Legal Realist (we can argue as to whether they should be some other time, but my point is they are – psst that was Llewllyn’s point) is not clear to me.
I don’t object to Alito’s being an Extrme conservative. I object to him being on the Supreme Court.
Your post seems to be looking to pick a nit and creates straw men that are not even discernable in the most far fetched of constructs.”
Dave Hoffman - December 27, 2005 at 2:34 pm
A second comment by Armando, also sent to our filter and which I can’t retrieve, was:
“As for your earlier criticism, I just ran across it now, it seems limited to this:
‘I think Armando is flat wrong here. Gore v. Harris, the ultimate Florida Supreme Court merits decision in the litigation, appears to be an exercise of discretionary jurisdiction under Section 3(b)(5) of the Florida constitution. But maybe that is the type of “hypertechnical gotcha-ism” that I ought to be avoiding. Whoops.’
well, the argument is that the ruling wass subject to appeal, either by a Florida appelllate court or the FSC. Certainly you do not quibble with the idea that the FSC was right to take it straight considering the time constraint.
So if that means being flat wrong in your mind, so be it. Sort of avoids the point of the post of course – the fact that it was Florida law being decided, not federal law. “
Armando - December 27, 2005 at 2:36 pm
In any event, I made two points.
The first was that my observations on the Solicitor General’s office was not describing any partiuclar view of what I thought the SG’s role should be, but what I believe it to be.
The second point was on Hoffman’s critique of my Legal Realism post, a critique I just saw. I said that Hoffman is missing my point in that the FSC’s review of the trial court decison in Bush v. Gore was an acceleration of an appeal as of right and that surely Hoffman would not disagree with the FSC’s view that time was important in that matter.
But it is all of no moment.
I just read the Days article Hoffman links to and I am not sure what I am to glean from that. That Clinton permitted freedom in the SG office is not to say that Reagan did. I cited particularly to Seth Waxman’s (Waxman was Clinton’s SG) comments on the role of the SG in my original comment.
Dave Hoffman - December 27, 2005 at 6:10 pm
Thanks to Armando for visiting here.
On the SG point, I think that evidence of “freedom” in the SG’s office contradict’s his thesis that it is increasingly an organ of WH policy. Now maybe the argument is that the freedom only occurs in Democratic administrations, but I don’t see evidence of that in our reader’s comments.
Even so, Armando still doesn’t grapple with the distinction between civil service SG folks (which Alito originally was) and the SG him/herself.
On the old dispute about Bush v. Gore, I’ll stand by my earlier point. Neither the Florida nor the US Supreme Courts had to act when they did.
Stuart - December 28, 2005 at 2:07 am
Armando, I’m not sure why you thought I was arguing that the SG’s office is bureaucratic. It’s not. It’s way too small to be bureaucratic. In fact, bureaucracy would kill the beauty of that office. All I was saying was that most of the ASGs who are hired are hired for their talent, not their politics. It’s a very elite group of lawyers, arguably the best set of pure legal talent in the country. It shouldn’t surprise anyone that a Wade McCree would hire a talent like Alito, and I know Democrats who worked in the SG’s office under Rex Lee (Reagan’s SG). I believe the ASGs can stay as long as they want – some do make it a career, albeit most stay a few years and move on (the money in private practice is much, much better). But if you’re suggesting that the people in the SG’s office by their nature are political animals, the answer is no, they’re not. I’m sure they have political views just like anyone else, but the job isn’t by its nature a political one.
The upper-level appointees are political appointees, true. But that’s true in any federal office.
I don’t know if you ever clerked for a judge, Armando. I did (no, not in the Supreme Court). I can tell you that the process of trying to figure out what the right answer is (which is the bulk of what the SG’s office does, too) has just about nothing to do with politics. Yes, each individual necessarily views issues through his own eyes, but that doesn’t mean it’s a political exercise – it means only that the decisionmaker is human.
Armando - December 28, 2005 at 7:03 am
Stuart:
You write “But if you’re suggesting that the people in the SG’s office by their nature are political animals, the answer is no, they’re not. I’m sure they have political views just like anyone else, but the job isn’t by its nature a political one.
The upper-level appointees are political appointees, true. But that’s true in any federal office.”
I suggest that your view is naive. I suggest that your view does not reflect reality.
I suggest that I cited a book i my original post that apparently disproves your thesis.
I suggest that SOME judges choose their clerks ideologically. Some even enjoy having a token foil of opposing views.
But I also suggest that clerks have much less to worry about in regards to ideological purity that does the SG’s lawyers. They are not putting their name on opinions. SG lawyers are putting their names on briefs.
Finally, it is clear that neither of us can make our points with clear conclusive evidence. I suggest that we can both of us temper our certainty on this. I think my original post was not written in the tone of your comments here.
Stuart - December 28, 2005 at 8:36 am
Armando, I wasn’t attacking you and I wasn’t writing without evidence. I’m actually writing my comments based on (1) my own interactions with the SG’s office, (2) discussions with people I know who worked there who discussed their experiences with me, and (3) my work with the former ASG I engaged to help me when I had a case in the Supreme Court (part of what we were doing was trying to lobby the SG’s office to come in on our side of the case, so I had to do a bit of legwork about the office and the people in it that I was dealing with; this former ASG was very helpful to me in how to deal with his former office – btw, he is a partisan Democrat who spent some time in the SG’s office under Reagan). I had a chance to deal up close and personal with them and to get a sense of the place, though admittedly it was from the outside looking in and only for a brief period. I’ll also tell you that my case was a statutory case, not a constitutional one, so maybe it was less likely to involved political considerations.
Nevertheless, I have to tell you that, writ large, I don’t think your point is well taken. By that I mean that the overall picture is pretty much as I described: the SG’s office is looking for pure legal talent and hires people based on that (other than in the positions that are held by political appointees). It has a strong institutional interest in preserving its credibility with the Court, and there is no surer way to squander that credibility than overtly politicizing the office. I’m not saying there never is any political cast to anything in the SG’s office; obviously people are who they are and do what they do for their own reasons. I’m just saying that my sense of the place was not that it’s just another collection of political hacks but with fancy law degrees. If it were, you’d see housecleanings with each new administration – which doesn’t happen – and people hired by a Republican SG would invariably resign or be replaced when a Democratic President gets elected, or vice versa – which also doesn’t happen.
Armando - December 28, 2005 at 10:29 am
Stuart:
With due respect, unless you name names and what you are talking about, you ask me to take your explanation on faith.
I think there is too much out there that contradicts your statements for me to do that, even if that would be wise in any circumstance.
Finalyy, your point that you were not attacking me is a nonsequitor. I didn’t say you were and it is immaterial if you were or not. I addres your arguments, not your tone or who you are (I don’t know who you are.)
Stuart - December 28, 2005 at 10:49 am
I’m not sure what you mean by “too much out there that contradicts” what I wrote. I gave you my perspective after some hands-on experience. It is what it is. I don’t claim to be definitive, only to have first-hand experience.
I have no doubt that there are people out there who think everyone else is a political hack and are prepared to say that same about the SG’s office, and if you choose to believe them, go right ahead. It’s a free country. I’m just telling you that my personal experience didn’t work like that, and that the experience of the other people I’ve dealt with who were in that office, or worked with those who were, wasn’t like that either.
As for naming names, I generally follow the practice of not using people’s names in things I write for publication (and I’m counting this in that category because it’s publicly accessible) without getting their permission first (unless they are already public figures, which is why I mentioned Alito and Roberts by name. I don’t know either of them personally). If this was more serious than just idle conversation and intellectual noodling, I would consider making the calls to get permission, but it’s not. If your response is that unless I name names you’ll presume I’m making all this up – which is what I infer from your telling me that without naming names I’m asking you to believe me on faith – well, you can presume what you want.
Niels Jackson - December 28, 2005 at 10:54 am
Word to the wise: Don’t waste too much time arguing with Armando. He’s not very knowledgeable or bright, he has trouble grasping the most elementary logical points (see the recent debate with Orin Kerr), and he apparently has an unlimited amount of time in which to write comments.
Armando - December 28, 2005 at 11:28 am
Yes Niels, your comments are quite edifying.
Boy these “Civil spaces” are so much better than the partisan bickering at daily kos.
Sheesh.
LHP - December 28, 2005 at 12:03 pm
For those interested in a new take on Legal Realism (a.k.a. legal modernism), there’s Juridicus at http://www.legalhistory.com/ForumFrame.php?Choice=Juridicus — The Legal History Project site has been described by LawMoose as “More than a legal history site, although it is also that, this is a legal history advocacy site, complete with its own manifesto, critical of law schools for neglecting legal history and critical of modern lawyers’ relative ignorance of legal history. Also a blog, interviews, and legal history quiz.”
DanK - December 28, 2005 at 12:06 pm
Dave,
I will admit right off that I have no knowledge (direct or indirect) regarding the SG’s office, so I take no sides in your debate with Arnando on that point.
However, I do wonder about your editorial comment in your post questioning Arnando’s assertion about whether Alito did or did not agree with Ed Meese’s ideology.
I mean, are we just supposed to ignore the 1985 job application statements of Alito?? Look, I personally hope against all hope that Alito doesn’t get on the Supreme Court, so I suppose you can just throw away my opinion as partisan. But I just don’t understand the attempts by Alito supporters to rewrite history by pretending that the 1985 job application doesn’t exist. Other than mollifying pro-choice Republicans, what possible reason could there be for denying the proof we have, in writing, that Alito personally holds ideologically conservative beliefs? If you can offer me any explanations for this, I sincerely would love to hear them.
Dave Hoffman - December 28, 2005 at 12:11 pm
I have deleted a comment here by Niels in the hope of keeping this discussion constructive and non-personal. Sorry Niels: this isn’t a completely open forum.
Stuart - December 28, 2005 at 2:05 pm
DanK, I’m sure Alito’s political views are conservative. And I’m equally sure that anyone who pretends they are not is kidding himself.
That being said, it doesn’t follow that he will strive to reach conservative results as a judge. If he is a judicial conservative – which is distinct from being a political conservative – then he will be process-oriented rather than outcome-oriented. Everything I’ve seen written about him indicates that he is VERY process-oriented, almost anally so. Plenty of judicial conservatives reach liberal results, and there are plenty of political liberals who are judicial conservatives. People who conflate political and judicial conservatism are missing the point in my view.
DanK - December 28, 2005 at 2:42 pm
Stuart, I largely agree with you as it pertains to lower court judges, but I’m not convinced that your analysis applies to the Supreme Court, as Supreme Court justices are not bound by precedent.
For example, Alito made clear in his Casey opinion on the appeals court that he thinks that the constitution does not allow married women to have autonomy over their own bodies. If such an issue comes up again in the Supreme Court, what reason do we have to believe that Alito won’t express the same opinion? Judicial conservativism in that situation might suggest he would follow the Supreme Court precedent in Casey, but here Alito would be torn between judicial conservatism (following precedent) and his own politicial conservatism (negating women’s personal bodily autonomy). It is here where political conservatism becomes an important element to be considered.
Stuart - December 28, 2005 at 3:16 pm
Maybe. I don’t think you can generalize that way, though. If you focus on process, it can lead to counterintuitive outcomes even in the Supreme Court. Let me give you a few examples.
1) Campbell v State Farm – in this case, the Sup Ct held that punitive damages can be constitutional only if they bear a fairly tight relationship to the compensatory damages. I forget the verdict in that case precisely, but I think it was something like $500,000 compensatory and $25 million punitive, a 50:1 ratio. The Sup Ct decided that was unconstitutional. Now I have no doubt in my mind whatsoever that Nino Scalia thought that verdict was sheer lunacy, supported by nothing but the jury’s hatred for insurance companies. But as far as he was concerned, the Constitution has nothing to say about punitive damages, and if the state courts uphold verdicts like that, god bless ‘em. So he dissented.
2) Raich v Ashcroft – this is the California medical marijuana case. Does anyone doubt that CJ Rehnquist was anti-pot? But as far as he was concerned, this was not interstate commerce, which means there was no federal role, so if April Raich wants to toke up some doobies to relieve her pain, and the state of California says it’s ok, it’s none of the federal government’s business.
There are lots of cases like this – Scalia voting to strike down the anti-flag-burning statute comes to mind, too.
DanK - December 28, 2005 at 3:35 pm
I didn’t mean to imply that there are some cases (perhaps many cases) where Supreme Court justices vote against their own personal political views. I’m sorry if you took it that way. The point I was trying to make is that they CAN vote for their own personal political views (and against a more judicially conservative approach) if they want to. For example, take Scalia and Kennedy’s votes in Raich.
The overall point I wanted to make is that I get concerned when people try to minimize discussion of Supreme Court nominees’ personal political views, as they seem potentially to carry just as much weight as a nominee’s judicial philosophy.
DanK - December 28, 2005 at 4:00 pm
Oops…In the first sentence of my last comment, I meant to write “I didn’t mean to imply that there AREN’T some cases…”
Hopefully you got the gist anyway.
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