The Volokh Conspiracy

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Who will be the next '10th justice'?


Next week, the Senate Judiciary Committee will hold hearings on the pending nomination of Sen. Jeff Sessions (R-Ala.) to be the next attorney general. In the meantime, there is rampant speculation on who will be appointed to other positions in the Justice Department.

Last week, Bloomberg reported that George Conway, husband of Kellyanne Conway, is in the running to be the next solicitor general. The SG is the Justice Department's third in command and is responsible for representing the United States before the Supreme Court.

Although most news reports highlighted George Conway's relationship to Donald Trump's successful campaign manager, don't be fooled. As I noted on NRO, Conway is a serious litigator. A partner at Wachtell, Lipton, Rosen & Katz in New York, Conway has substantial litigation experience across a range of issues. Among other things, Conway briefed and argued (and won) Morrison v. Australia National Bank, one of the most significant securities law cases in the Supreme Court over the past 10 years,

Although Morrison was Conway's only appearance before the high court, that's one more than President Obama's first solicitor general nominee had when she was nominated. Although widely respected for her intellectual acumen and successful term as dean of the Harvard Law School, Elena Kagan had no meaningful appellate experience before becoming solicitor general. (And, for what it's worth, neither Kenneth Starr nor Robert Bork had argued before the Supreme Court before becoming solicitor general either.)

Conway has had some controversial clients. He has represented Philip Morris and was part of Paula Jones's legal team when she sued President Bill Clinton. Yet that's hardly a disqualifier. Indeed, Conway's representation of these clients was quite successful.

Conway is not the only contender for solicitor general in the Trump administration. As I understand it, former assistant attorney general Charles J. "Chuck" Cooper is also under serious consideration. A former clerk for Chief Justice William Rehnquist, Cooper served as head of the Office of Legal Counsel during the Reagan Administration and also worked in the Justice Department's Civil Rights Division.

Like Conway, Cooper is a hard-nosed litigator who has represented a wide range of clients. Perhaps most infamously, Cooper was among the attorneys who argued in defense of California's Proposition 8, which sought to ban same-sex marriage. Also like Conway, Cooper appears to have connections within the administration. He obtained both his B.A. and J.D. from the University of Alabama and is reportedly close to Sessions.

Conway and Cooper are not the only potential solicitor general picks, although they do appear to be the leading contenders—at least for now. As we've seen, short lists tend to grow (and shrink again) before final selections are made. So don't be surprised if other candidates emerge, particularly from within the D.C. appellate elite. Whoever Trump selects, the serious consideration given Conway and Cooper suggests that the next solicitor general will be someone with substantial litigation experience and who has earned the trust of the president-elect's inner circle.

UPDATE: David Lat shares his (very positive) experience with George Conway at Above the Law.