The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Day by day, the Biden cabinet comes together. Xavier Becerra was tapped as HHS Secretary, which means he is out of the running for Attorney General. So far, the DOJ leadership remains unannounced. Demand Justice has called on Biden to nominate a Black woman for Solicitor General. This short-list includes one important overlap with the group's SCOTUS short list: California Supreme Court Justice Leondra Kruger.
Would accepting the SG nomination be a good move for Kruger? The conventional wisdom is, of course! The Solicitor General is an elite position, and it has served as the stepping stone for Justices Elena Kagan and Thurgood Marshall. (Then again, Ken Starr stepped down from the D.C. Circuit to serve as Solicitor General, perhaps in the hopes of being elevated to the Supreme Court; that plan did not pan out.) Also, this nomination would allow Kruger to closely work with the Biden administration, build trust, and presumably move to the apex of the short list.
Are there downsides? Of course. One of the benefits of being a sitting judge is that you can stay out of the political fray. At this point, Kruger has a spotless record. She served in the Solicitor General's office with distinction. As far as I am aware, she has not written any controversial decisions on the California Supreme Court. In a 52-48 Senate, she would be easily confirmed.
But several facets of the SG job may add some spots to a spotless record. First, her SG confirmation hearing would be a dress rehearsal for her Supreme Court confirmation hearing. The knives will be out. And Republicans will make every effort to weaken her candidacy. If, for whatever reason, some damaging information arises from her hearing, or she stumbles in any way, the Biden administration may think twice about nominating her for the Supreme Court.
Second, the most potent weapons a Supreme Court nominee can wield at a hearing is the code of judicial ethics: "As a sitting judge, I cannot comment on my prior decisions." That excuse goes away when the nominee is no longer a sitting judge. Senators can and will ask why and how the Solicitor General made certain arguments. And Kruger's job could be quite messy. The next SG may have to seek frequent stays from the Supreme Court. (The Fifth Circuit is the new Ninth Circuit). And the next SG will have to reverse many positions taken by the Trump Administration. Chief Justice Roberts, in particular, has been savage on administrations that have flipped positions. (See my article, Presidential Maladministration, now more relevant than ever.) In the abstract, reversing positions should not be particularly controversial, but that record could create tensions that–at the margin–could promote another nominee over.
Third, serving as Solicitor General could create certain recusal issues. In 2010, Solicitor General Kagan hermetically sealed herself from all ACA litigation at the earliest juncture. (I wrote about this history, at length, in my first book, Unprecedented: The Constitutional Challenge to Obamacare). During her confirmation hearing, no one asked Kagan why she recused herself. The answer would have been obvious: I have wanted to be on the Supreme Court for decades, and I wasn't going to sabotage my candidacy so I could attend some stupid meetings. Once you are off the bench, you have to explain these sorts of difficult ethical issues. You can no longer punt. An SG Kruger very well may have to defend certain Biden policies that could require her to recuse at the Supreme Court. And, at the margin, Biden may choose to select another nominee who lacks the recusal issues.
Far be it from me to give advice to a potential nominee I will consistently disagree with. But all things considered, a sitting state Supreme Court justice is in a much better position to get the nomination, and have a smooth confirmation, then a Solicitor General embroiled in the political fray.
Finally, in an unusual twist, Demand Justice has also put out an anti-short list: people who should not be selected!
"People like Neal Katyal, Lisa Blatt and David Frederick should not be up for appointments in the Biden administration," said Brian Fallon, Demand Justice's founder, in a statement. "We should not be rewarding elite Democratic lawyers who, while our democracy was at a low ebb these last four years, endorsed Donald Trump's Supreme Court nominees, despite the threat to vulnerable communities, and represented big, corporate interests."
Poor Neal. For four years, he served as the Solicitor General in exile, arguing every progressive cause to the Supreme Court, and to the public. His productivity is remarkable. Yet, Neal had the temerity to support Neil Gorsuch's nomination to the Supreme Court. And he also represented corporate clients. (Recently, Tom Goldstein defended Katyal). Lisa Blatt, the most accomplished female advocate in Supreme Court history, is also a corporate lawyer. And she had the temerity to support Brett Kavanaugh's nomination to the Supreme Court.
If Demand Justice can impose this sort litmus test on all nominations, the Biden administration will have a very, very tough time filling circuit vacancies. Forget blue slips from red states. Biden will have to fight for blue slips from blue states.