Biden Administration Still Looking for SG, Justice Kruger Twice Declined The Job

Will Sri Srinivasan fall into the Ken Starr SG Trap?

The National Law Journal reports that the Biden Administration is having some difficulty finding a Solicitor General:

Biden's selection for U.S. solicitor general is still being discussed, according to a source close to the team. California Supreme Court Justice Leondra Kruger, mentioned as a possible choice, has twice declined the job. Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit has also reportedly been considered for the position.

I am not surprised Justice Kruger declined the nod. I offered her this same unsolicited advice last month. Kruger will almost certainly be nominated when Justice Breyer steps down. Why would she suffer through an unnecessary confirmation hearing, and potentially get embroiled in political conflicts? The fact that she declined twice reaffirms my thinking.

In the interim, Elizabeth Prelogar will serve as acting Solicitor General.

Elizabeth Prelogar, a Cooley partner in Washington and former assistant to the U.S. solicitor general who was a legal adviser in the special counsel probe of Russian interference in the 2016 election, will be the principal deputy U.S. solicitor general in the new Biden administration.

Alas, other candidates on the short list are not female:

The transition team is still interested in filling the position with a woman, preferably someone with litigation experience and stature. However, if the choice is a male, some names mentioned include Mayer Brown partner Andrew Pincus and David Frederick of Kellogg, Huber, Hansen, Todd & Frederick.

Either selection would be excellent, but they are both white men. There is another non-white male on the short list:

It is also possible that Chief Judge Sri Srinivasan of the D.C. Circuit may be among the candidates, although there is some concern about removing two judges from that appeals court.

There is some precedent for a D.C. Circuit judge stepping down to serve as Solicitor General, in the hopes of getting appointed to the Supreme Court. Ken Starr served on the D.C. Circuit from 1983 till 1989. At that point, he was confirmed as Solicitor General in the H.W. Bush administration. Most people assumed Starr made this move to help his Supreme Court prospects. Alas, Starr was not selected for the Brennan and Marshall seats. The rest is history. My unsolicited advice to Judge Srinivasan: stay put.

Update: There is a prominent female Supreme Court advocate not on the short list. Lisa Blatt has argued more SCOTUS cases than any other woman in American history. By all accounts, she would be a stellar Solicitor General. Alas, Lisa Blatt endorsed Brett Kavanaugh for the Supreme Court. And for that reason, she is persona non grata with Demand Justice. They singled her out, along with Katyal and David Frederick:

Demand Justice alsosingled outthree well-known Washington lawyers it said Biden should not consider for solicitor general: Neal Katyal, Lisa Blatt and David Frederick.

"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."

If Biden bucks Demand Justice on Solicitor General, that group's influence will be weakened.

Comments

[Cal Cetín]

"Alas, other candidates on the short list are not female"

Are you sure? Maybe there are some people assigned the male gender at birth who would be willing to identify as women in exchange for the Solicitor Generalship.

[Dr. Ed 2]

🙂

I've long identified as a Male Lesbian...

[I Callahan]

They're only nominated as Assistant Health Secretaries...

[Longtobefree]

"Alas, other candidates on the short list are not female:"

Your sexism is showing.
I wait in vain for the case where putting people in federal jobs (you know, tax dollars at work) based on prohibited classifications gets someone in trouble.

[Brett Bellmore]

Biden's sexism is showing; Remember, he promised an administration that looked like America: Mostly female and black.

[tkamenick]

Blackman's assumption of Biden's sexism is showing.

[Brett Bellmore]

What? He promised to pick a black woman VP. And kinda sorta did it.
He promised he'll pick a black woman for the next Supreme court slot.

That's not racist and sexist? Making race and sex absolute criteria?

An all female communications team? Mostly female economics team?

I'll grant he's taking merit into account, (Maybe not my idea of it, but he's doing it.) but by his own words it's second or third in priority after sex and race.

[jb]

"He promised to pick a black woman VP"

That's wrong. He promised to pick a woman VP.

[hardreaders]

Caitlin Halligan isn’t interested? I have to assume she’d be on the shortlist, she seems like a natural choice. Was she maybe fed up after previously being put through the rigmarole for CADC?

Diane Wood is 70, so if age is not a big concern, why not Barbara Underwood?

I am a little surprised they have so much difficulty. Surely there must be someone acceptable among all the state SGs, state SC justices, and law profs out there. It’s not like they’re vetting someone for a lifetime Art. III appointment.

[Jimmy the Dane]

Who wouldn't want to join the circus sideshow that is going to be the Biden administration? Obviously Q believers are public enemy #1 but a guy who thinks that systemic racism in education kills black people's "spirit animals" is a normal thing, right?

[Dr. Ed 2]

Jimmy, It's Gonna Be Fun...

[Rev. Arthur L. Kirkland]

The reckoning -- part of the continuation of victory against conservatism in the culture war -- begins tomorrow afternoon, clingers.

Right-wingers get to whine about all of this damned progress as much as they want -- but they will comply.

[I Callahan]

No we won't, Artie.

[Cal Cetín]

Your Bond-villain tirades are getting boring.

[grb]

Dr. Ed 2 : Jimmy, It’s Gonna Be Fun…

Uh huh. Is that before or after the "civil war" you're forever predicting? I shouldn't give advice to Nostradamus Ed, but what the hell:

It's going back to normal with a real human being again in the White House. Granted, we'll see less entertainment than with a reality-TV-star carnival barker huckster buffoon. There's certain to be a reduction in WWE-style excitement, and it's possible ratings will tumble minus the freak-show of President DumpsterFire. Also, people will need to go back to the internet now they can't get their trolling straight from the Oval Office.

So I admit there are trade-offs, but overall things will be calmer, quieter, and with much, much, much fewer lies.

I can live w/ that.......

[Jimmy the Dane]

Oh the freak show is going to be plenty entertaining. Can't wait!

[Intelligent Mr Toad]

Well, if Kruger doesn't want the job, maybe Dunning would like it.

[Alex]

Yours is a deeply disturbing take, Josh.

Your write: "Alas, other candidates on the short list are not female."

Qualification for the job of Solicitor General isn't found between one's legs (or whatever makes someone a female these days). It’s found in hard work, accomplishment, and some measure of natural talent. For someone as smart as you to reduce the job to a question of femininity isn't just sexist; it's reprehensible.

Oh, sure, we could all agree that a female SG would be a significant milestone. But your post isn't about finding a female SG (or the reasons why that might be hard, including the discretionary and non-discretionary reasons why female attorneys haven't – in the aggregate - achieved the levels of success of male attorneys – again, in the aggregate). That would be a very different post. No, your post is about the incoming Biden administration’s trouble finding someone willing to take the job.

Except, of course, they haven’t exactly had that kind of trouble, as there are plenty of well-qualified candidates willing to take the job. It’s just that those people just don’t have the right things between their legs (or, you know, whatever).

And yet, here comes Lisa Blatt. Well-qualified, uber-accomplished, and female (whatever that means). What’s wrong with her?

Oh, she supported Kavanaugh, who deserved nothing that he got except for the confirmation, and that’s unacceptable to some special interest group.

Why not ask ExxonMobil and J.P. Morgan’s opinions on the matter too, eh?

[Bored Lawyer]

"Either selection would be excellent, but they are both white men."

Qulle horreur.

"she is persona non grata with Demand Justice."

Who? Is that some kind of club? Do they have cool hats, like the Mickey Mouse club?

[Kazinski]

"Lisa Blatt has argued more SCOTUS cases than any other woman in American history"

White women are so 2016.

[Dilan Esper]

Blatt would actually be an excellent choice.

One thing groups like Demand Justice don't get is that the SG is really not a good position for a lefty lawyer. The SG spends most of her time arguing for big sentences and for the affirmance of criminal convictions where constitutional rights were arguably violated. Now, what SHOULD be true is the SG shouldn't be seen as a ticket to the federal courts- we should be appointing criminal defense attorneys and such to be federal judges, not SG's.

But Blatt would be excellent at the job.

[Cal Cetín]

If you really want a historic appointment, dig up Myra Bradwell and appoint her to the Solicitor Generalship.

She's even more of a pioneering woman lawyer than Ginsburg.

"She studied law under the instruction of her husband, and passed a creditable examination. She was the first woman in America to ask for admission to the bar, and it was refused because she was a married woman. She immediately set to work, with the aid of her husband, to have this legal disability removed, and the success of their undertaking is a matter of congratulation for all women. Mrs. Bradwell declared that she should never again apply for admission to the bar, but, to her surprise, she one day received a certificate upon the original application from the court that had refused her years before. Mrs. Bradwell was the first woman who was made a member of the Illinois Bar Association, and also of the Illinois Press Association. The first weekly legal paper published in the Western States was the Chicago "Legal News." established twenty-three years ago by Myra Bradwell, who has always been its manager and editor. The legislature gave her a special charter for the paper, and passed several acts making it evidence in the courts and a valid medium for the publication of legal notices. The law giving to married women their own earnings was drawn by Myra Bradwell, and its passage was secured through her efforts in 1869."

https://www.findagrave.com/memorial/92728825/myra-willey-bradwell

If in her present condition she can't do all the work of her job, have a male understudy do it for half the pay. That'll show the patriarchy.

[Jimmy the Dane]

She probably voted Democrat a few times in the last election. Should be easy to find her new address.

[santamonica811]

I guess I'm not really understanding the argument against Kruger. She will go through a confirmation, and this would be done while Biden's honeymoon is still on. She would be confirmed, with a bunch of Republican support. Then, 3 months or 1 year later, if/when Biden nominated her for SCOTUS, it would be pretty hard for any Rs to change their vote (absent some malfeasance in office, which no one expects from her). She's already gone through the Senate, so I expect her confirmation hearings would involve a lot of, "Yes, Senator, you already asked me that question 3 months ago, during my SG confirmation. Nothing in the interim has changed my opinion on that matter."

I'm not really seeing the downside.

[Brett Bellmore]

I presume the downside is that, while questioning about policy is kind of off limits for judicial nominations, that's not the case for the Solicitor General. So there are a lot of questions she could avoid answering if she skipped this position.

The other potential downside is the administration requiring her to argue some really nasty positions while SG, depending on what topics they're litigating. Which could complicate her confirmation hearings for the Court.

[santamonica811]

Good first point...I had not thought about that.
Second point is not convincing to me. Both R and D senators understand that a SG argues cases that she very well does not personally agree with. That's what lawyers do. That's certainly what govt lawyers do. (Of course I recognize that both D and R senators will often pretend for the cameras, "I'm shocked and appalled that you argued for/against X in that case." But I doubt such phony bullshit would change the confirmation votes of any senator.)

[mtkesq]

Even without Justice Kruger, there are still plenty of non-white women who President Biden can nominate. You have Sherrilyn Ifill and Janai Nelson from NAACP or Preeta Bansal served in NYS Solicitor General office and served in Obama administration as examples. I do not think Justice Kruger is even a favorite for Supreme Court. One of the reasons Merrick Garland was nominated to be AG, in my opinion, was to open up a spot on the DC Circuit so President Biden could elevate Judge Ketanji Brown Jackson and eventually she will be Supreme Court nominee.