Would serving as Solicitor General help or hurt a SCOTUS shortlist member's prospects for the Supreme Court?

For a sitting judge, there are risks of leaving the bench and entering the political fray.

|

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.

NEXT: "Faculty Are Free to ... Disagree with Any Policy ... of the University ... Without Being Subject to Discipline"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. So ….

    I mean, anyone with half a brain knows that Demand Justice isn’t the Democratic Party, right?

    Which means that either Josh Blackman is a moron, or that he knows better, but is writing for his audience.

    Six of one, half a dozen of the other. Remember when the VC used to be a serious law blog? Back when Orin Kerr posted regularly? When Will Baude was added, and was a frequent contributor? When they had standards that precluded them from continuing to feature the likes of Clayton Cramer?

    1. Demand Justice and Team D: Is there really a difference, loki13?

      I am looking at their website, and their agenda aligns perfectly with Team D. Here is a link: https://demandjustice.org/court-reform/?utm_content=cr&utm_source=djo&utm_medium=web&utm_content=hp

      Or are you saying that they are completely separate organizations?

      1. Brian Fallon was Clinton’s press secretary way back in 2016. He obviously has nothing to do with the party.

      2. It is unfortunate and unsurprising that my half-a-brain comment had to be proved so quickly.

        The Democratic Party (or, as you put it, “Team D”) is not a monolith. There are numerous groups (you might call them … special interest groups, or PACs) that seek to influence “Team D.”

        Demand Justice is one of those groups. It is a left-wing advocacy group that has the explicit purpose of pulling the Democratic Party leftward on judicial issues.

        If you’re curious (doubtful) there is an Atlantic Op-Ed that details the philosophies of the founders. If you read what they said, their ideas would preclude, for example, Sotomayor. Which is hardly a mainstream Democratic position.

        But the long version of this is pretty simple; you cannot conflate the positions of a lobbying group that was formed to move a party to one position, with that of the party. Should be simple, yet too complicated for noted T4 law professor, Josh Blackman, to comprehend.

        1. If you think that Demand Justice’s founders’ philosophy statement indicates what their intent is or perhaps is a measure of integrity, then it appears you need to direct your ad hominem attacks about intelligence toward yourself. Further, although you are correct in that DNP leadership is not monolithic, they do have a significant number of weak-kneed members who will cave to the ridiculous demands from immature groups such as this. Rather than insult Prof Blackman, with whom you clearly have an issue, and anyone else who disagrees with you, you could have simply made your argument.

          1. Oh, goodie, it’s the “ad hominem” guy. What, did you make the mistake of paying for the sub-par education at South Texas College of Law?

            “If you think that Demand Justice’s founders’ philosophy statement indicates what their intent is or perhaps is a measure of integrity,”

            I don’t “think” anything; I am simply smart enough to know that a lobbying group formed with express goals (including changing the position of the Democratic party) is not the Democratic party. It’s not rocket science.

            “Further, although you are correct in that DNP leadership is not monolithic,”

            Of course I am correct. Because this requires half-a-brain to understand, something that is, apparently, lacking in Josh Blackman’s fan club and classes.

            “they do have a significant number of weak-kneed members who will cave to the ridiculous demands from immature groups such as this.”

            Sure they do. Just like the GOP. Something something RINOS and DINOS? Or maybe you just have no idea what you are talking about? I’d go with the latter.

            “Rather than insult Prof Blackman, with whom you clearly have an issue, and anyone else who disagrees with you, you could have simply made your argument.”

            Why bother? I’m not trying to persuade the morons, so I might as well enjoy myself a little.

            It’s like all the idiots going on about the election. Yeah, I know that further belittling the rubes doesn’t help, but at least I get some fun out of it. And really, that’s what matter now.

        2. Ok, so you’re saying they are separate organizations, hence your comment = anyone with half a brain knows that Demand Justice isn’t the Democratic Party, right?

          Can you tell me the positions that Demand Justice espouses that Team D does not? The website listed four. Tell me which of the four Team D is not on board with. I being totally serious with you. The link is there.

          To me, Demand Justice represents the mainstream of thought within Team D, ideologically speaking. There is no distance between them. Maybe you can point me to where that difference is.

          1. On their list of causes:

            1. Impeach Kavanaugh. I happen to agree with that, but that’s not a mainstream or a Democratic party position.

            2. Nominate progressives. Given their criterion would exclude such people as Sotomayor, that is not a mainstream or Democratic party position.

            3. Oppose Trump’s judges. He won’t be the President much longer, and a blanket opposition to Trump’s judges is not a mainstream or Democratic party position.

            4. End Qualified Immunity. This is not a mainstream nor a Democratic party position. It’s just as likely to be held by activists on the left as by libertarians. I mean, unless you think Justice Thomas now speaks for the Democrats.

            1. Directly from the link, which you did not quote.

              Demand Justice supports four key reforms to the federal courts:
              1. Restore balance by adding four seats to the Supreme Court.
              2. Depoliticize the Supreme Court by creating term limits for justices.
              3. Create a binding code of ethics for Supreme Court justices.
              4. Improve access to justice and diversity by adding judges to lower courts.

              All of these are (or have been) Team D positions. What am I missing?

              1. Some Democrats support these things. They are not “Team D” positions in the sense of being part of the party platform, or even enjoying explicit support from Biden.

                There is nothing particularly partisan about about points 2-4. I imagine individual Republicans will support some of them and oppose others.

              2. First, these are not their causes (which you can look up as well- I shouldn’t have to google that for you).

                Second, all of these are either NOT official Democratic party points, or are so banal as to be non-partisan in that articulation. In fact, some of them (term limits) are usually associated with the activists on the right, although less so, perhaps, with the recent appointments.

    2. I would call Demand Justice a factional organization within the Democratic coalition. But I didn’t see where Blackman conflated them with the Democratic party, he identified them by their own name without any qualifiers.

      1. “I would call Demand Justice a factional organization within the Democratic coalition.”

        Nope. Again, it’s a lobbying group, not part of the “Democratic coalition” (whatever that might be).

        “But I didn’t see where Blackman conflated them with the Democratic party, he identified them by their own name without any qualifiers.”

        “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.”

        See, it’s confusing the rubes again. Where is there any evidence of this other than JB’s fevered imagination? DO we have to worry about …

        oh no….

        DEMAND JUSTICE DECEMBER!

        It’s like Blue June, but 100 times stupider.

    3. I think Demand Justice is making some headway, though.

      From my standpoint, the issue isn’t the Neal Katyals of the world representing corporate clients. There’s good reasons not to hold lawyers’ clients against them.

      Rather, the issue is about who is not considered for these jobs. I.e., criminal defense attorneys need not apply. Personal injury lawyers need not apply. Anyone who didn’t go to Harvard or Yale Law School has very little chance. Public defenders? No chance. Civil rights lawyers? No chance. Public interest lawyers? No chance.

      We need to broaden the pool. It should be possible for a skilled lawyer to get these jobs who hasn’t monomaniacally pursued the narrowest of career paths, and the Democrats, a party that supposedly believes in diversity, loves to reward these careerists over and over again rather than taking a broader look.

      1. “We need to broaden the pool. It should be possible for a skilled lawyer to get these jobs who hasn’t monomaniacally pursued the narrowest of career paths, and the Democrats, a party that supposedly believes in diversity, loves to reward these careerists over and over again rather than taking a broader look.”

        HA! You think Josh Blackman would ever engage seriously on that issue? That might make people that think he is a serious thinker … reconsider their opinion.

        Most practicing attorneys (at least, this one) will tell you that the bench, at both the federal and the state level (where I have practiced) is far too constrained.

        Way too many prosecutors. After that, civil litigators (usually business litigation, or defense). Many of them, BTW, make fine judges! But a better diversity of practice areas and backgrounds would make for a much better bench.

        As for SCOTUS, it would be great to see the pool expanded from the usual suspects (Harvard/Yale, CoA). Not holding my breath on that.

        1. Justice Amy Coney Barrett was a good start = As for SCOTUS, it would be great to see the pool expanded from the usual suspects (Harvard/Yale, CoA).

          And FWIW, I agree with you.

          1. “Justice Amy Coney Barrett was a good start”

            Not really. Oh my, she didn’t go to the usual Top 10 Private Law Schools for rich kids. She went to a perennial Top 20 Private Law School for rich kids. (ahem)

            Let’s see …

            Did she double clerk? Yep, first for D.C. Cir., then for the Supreme Court (Scalia).

            Did she work at the usual prestigious law firms? Yep, including a stint at Big Law (after merger).

            She then did the academic route, before the appellate route.

            No, this is not diversity of practice experience. At all.

            1. I generally agree, though it’s worth noting that even expanding the universe of acceptable law schools is important. Indeed, I had some idiot lefties on my Twitter feed making fun of her for graduating from Notre Dame Law, implying that wasn’t an impressive enough credential, which shows you how powerful the presumption in favor of HarvardYale is.

              But yes, ACB only put a tiny crack in one of the many bulwarks here. She’s still very much a typical pick.

            2. She went to an as-good-as-it-gets law school for superstitious rich kids (after attending an about-as-good-as-it undergraduate school for superstitious rich kids). The dogma seems to have restricted her selections.

              She also had a formidable apparatus (Federalist, religious right) pushing (and shaping) her. Circuit clerkship, Supreme Court clerkship, sprinkling of big law, then a conservative law faculty.

              She was a test-tube judicial nominee as much as any of them.

              1. She went to an as-good-as-it-gets law school for superstitious rich kids (after attending an about-as-good-as-it undergraduate school for superstitious rich kids). The dogma seems to have restricted her selections.

                That’s a nasty and disgusting, bigoted statement. It’s also not even true on its own premises- Georgetown Law is a Catholic school ranked higher than Notre Dame (and definitely closer to elite Washington).

    4. C’mon, loki, who do you think you’re fooling? Every honest person knows the DNC answers to Joe Biden, who answers to Kamala Harris, who answers to Demand Justice, which answers to AOC, who answers to Antifa, which answers to Colin Kaepernick, who answers to Dominion Voting, which answers to Zombie Hugo Chavez, who answers to Xi Jinping, who answers to Rev. Arthur Kirkland.

  2. “For a sitting judge, there are risks of leaving the bench and entering the political fray.”

    Uh, all sitting judges are in the political fray.

  3. “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 Neal 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.”

    Apparently supporting well qualified supreme court candidates is an absolute NO-No for progressives

    1. There are plenty of qualified candidates who *haven’t* advocated for the right of corporations to use African child slave labor to make their products. It wouldn’t be so bad if one or two of the justices came from backgrounds other than BigLaw corporate defense. Diversity of thought and all that.

    2. Apparently nutpicking is Blackman’s new favorite passtime.

      1. I thought it was writing poorly reasoned and incredibly stupid blog posts at such a rate that you don’t have time to comment about how stupid each is, because there will be five more that day that are even more incredibly inane.

        Hey, it beats teaching! Not that his students are going to pass the bar.

        1. I sense Blackman will spend a lot of time in the upcoming Dem admin finding leftist hot takes and sharing them like they’re Biden’s latest policy proposal.

          1. Ugh.

            You’re right.

            Well, that and some breathless “I have some uniformed speculation about SCOTUS that makes Roberts look bad” as if the VC was a poorly-sourced TMZ.”

          2. I sense Blackman will spend a lot of time in the upcoming Dem admin finding leftist hot takes and sharing them like they’re Biden’s latest policy proposal.

            I dunno; he does have to worry about Turley suing him for trademark infringement.

          3. Oh, S0, be easy on him. After all what is a guy from a Tier 5 law school supposed to do?

      2. Fallon was Clinton’s flack in 2016. Not Joe Biden but not some rando either.

        1. Not really an Administrative policy either.

          This isn’t even court drama, it’s like pre-Court, not-Court not-Drama.

      3. Then what is your comment, if not picking invisible nits?

    3. He may have played the winning hand in the end. The Democratic factions maybe warring over who’s nomination Mitch Mcconnell will kill first. If Neal Katyal is one of the few Biden nominees that can get past a GOP Senate then he may have the leg up.

  4. I’m not sure a 52-48 Senate will “easily” confirm any of Fraud-President Biden’s nominations.

    Most of the Republican Senators come from strongly MAGA states, even half of Susan Collins’ state (Maine 2nd District) went for Trump. There is going to be incredible pressure for a “scorched earth” approach.

    1. Oh, hell yes.

      Ed’s scenarios are gonna get even more out there come January, and I. Am. Here. For. It.

      1. Are you alluding to your confidence that the Dems will win both Georgia Senate seats, or are you expecting a Republican Senate to be co-operative towards Biden judicial nominaions ?

        If the latter, what do you base this on ?

        1. The GOP’s co-operative approach to Obama nominations in 2015-17 ?
        2. The Dems co-operative approach to Trump nominations in 2017-21
        3. Your naturally cheery disposition ?

        1. I make Georgia a toss-up or close to it. Still plenty of gay-bashing, superstitious, racist losers in Georgia, and it’s still the South, but the state is showing some signs of improvement and is no longer a Mississippi or Alabama. Perdue is a coward with baggage, Loeffler is Clinger Barbie, Warnock is a black guy in the South, Ossoff is a brainiac in a state with lousy schools and plenty of backwaters.

        2. I am not, I’m basing it on Ed writing Fraud-President Biden, and MAGA states.

    2. 44% is not, of course, “half,” for anyone not named Dr. Ed.

  5. Defending Katyal, Goldstein writes,

    He just happens to work for a corporate law firm, with its corporate clients.

    “just happens?” Was he drafted?

    1. Don’t you just hate it when you just so happen to accidentally devote your entire professional career to helping corporations avoid legal accountability? Wrong place, wrong time.

      1. “Don’t you just hate it when you just so happen to accidentally devote your entire professional career to helping corporations avoid legal accountability?”

        I hate it in the same way that I hate having people give me lots and lots of money!

        To paraphrase John Dillinger … why do I defend corporations? BECAUSE THAT’S WHO HASTHE MONEY!

  6. Justice Kruger already served as a deputy solicitor general and argued a dozen cases before SCOTUS. Serving as Solicitor General would make an already pretty darn well qualified candidate more qualified. I suppose you could have something come out of left field that arose while she is SG which would yank her confirmability, but that’s probably just as true of her continuing to serve as a California Justice. She can’t just hermetically seal herself in a controversy-free bubble hoping to be nominated to SCOTUS.

    1. Exactly. And in the world of thinking through one’s opinions-

      Going through the confirmation process (and succeeding) would actually make it more, not less, likely that she could get confirmed for a Supreme Court seat. Because while there will be more digging for a SCOTUS seat, at least you will have been vetted one time through, and the knives will have already been out.

      1. Something here really touched a nerve. Could it be too close to home? All these comments for a post you deem worthless. Why all the thunder for nothing? Me thinks the loki13 doth protest too much.

        1. “Why all the thunder for nothing?”

          ….because it’s fun?

          Why are you here? Certainly not to showcase your legal acumen.

      2. I think that actually brings up a potentially more interesting point. I’m not sure I would want to accept the nomination if Republicans hold the senate because there is going to be a bunch of uncertainty about what confirmation scheduling and hearings look like. Under California judicial ethics rules, would she need to resign to accept the nomination (I have no idea)? Would Kruger as a likely short-lister get something like the Estrada treatment? One might advise her that the risk of sacrificed in the name of political maneuvering isn’t worth it when she’s already in a pretty decent position for a nomination. She’s already in a decent position as it is. Being recently advised and consented would put her in an even better position, but maybe it could lead to being procedurally blocked out of the position.

        1. She wouldn’t have to resign until she was confirmed. Janice Rogers Brown, who was on the California Supreme Court, was appointed by George W. Bush to serve on the DC Circuit, and she didn’t resign until she was confirmed. But why would she uproot her family (she’s married, with school-age children) and move 3,000 miles away, giving up an excellent position, to take a job that may disappear in 4 years and which might, but might not, improve her chances for SCOTUS?

  7. I seriously doubt that Biden will be able to get a circuit judge confirmed. Not while Team R holds the Senate, with McConnell as the Majority Leader.

    As for district court nominees….let’s see how long that blue slip tradition holds up. I don’t see Team R returning any, and there are only a couple dozen district court vacancies in blue states. I mean, 1 nominee confirmed every other month would fill those vacancies in 4 years, so I guess that is Ok. The POTUS is entitled to pick people who represent his philosophy.

  8. Talking of blue slips, what policy is Lindsay Graham adopting for District Courts ?

    There seem to be about 25 unprocessed District Court nominations at present, almost all from States with two Dem Senators. Are home State Senators getting a veto these days on District Court nominees ?

  9. I find myself skeptical of the value of this sort of speculation.

    It seems to me that we have reached a point where as long as one passes the (rather high) threshold for basic qualifications for the Supreme Court, details more or less don’t matter anymore. Most Senators will vote for or against depending only on the party of the nominating president. A few remaining old-school folks will defer to the President absent some egregious (or egregious-seeming) smoking gun.

    But does anybody really care whether a candidate was Solicitor General for a few years or instead was a state Supreme Court Justice? What senator in his or her right mind would possibly make a decision whether to confirm or not based on such a detail? Compared to philosophical differences, old harassment complaints, and other matters which have gripped recent confirmation hearings, it seems like a detail nobody could really care less about.

    Except perhaps law professors with a little too much time on their hands.

    1. Well said.

      I do think that most of the groups (on the left and the right) are trying to push certain names in and out of the “conversation list” if you catch my drift. I just don’t think they have a whole lot of success doing so.

    2. I agree the speculation is of limited value, and that partisan considerations are foremost.

      But precisely because partisan considerations are foremost, such speculations are unlikely to face a practical test. Because if the Ds control the Senate they’ll confirm whoever is nominated, and if the Rs control the Senate they won’t confirm, and more to the point there probably won’t be a vacancy.

      None of the liberal Justices are going to resign unless there’s a clear path to a like for like replacement, and none of the three looks likely to shuffle off this mortal coil any time soon – Breyer’s 80 but looks pretty fit. Thomas might be the top candidate for departure, but he’s not getting replaced if the Rs control the Senate.

  10. Neal Katyal would be an excellent pick. Very intelligent and knowledgeable. I do wonder though … the goal of a supreme court advocate is to advance your clients interests. You aren’t, cannot be, married to a certain judicial philosophy when you know that philosophy will lose. I do wonder how he would be as a judge. Advocates are openly political, openly twisting things to win. That is their job. It isn’t the job of a judge.

  11. xavier becerra is highly unqualified. he will not be confirmed.

    1. He certainly is not a slam dunk. It depends on who else Biden nominates. Even a R Senate is unlikely to reject more than 1 nominee.
      I recall a conversation on the NY subway who was very pleased when Lind Chavez was rejected. I comment to her was, “that was a wasted bullet; now you’ll get John Ashcroft for AG.” She grimaced.

  12. Even a R Senate is unlikely to reject more than 1 nominee.

    Why would you think that ?

    Here’s 69 Executive Branch nominations Trump did not get past a Republican Senate :

    https://en.wikipedia.org/wiki/List_of_Donald_Trump_nominees_who_have_withdrawn

    Why would Biden fare better ?

    Things have moved on since the comity-fest of the early Bush 43 administration 🙂

Please to post comments