The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Where is President Biden's Solicitor General Nominee already? And what about OLC?

Is there some strategic reason for the delay? Or still internecine conflicts over the selection?


Since the inauguration, the Biden Administration has made many consequential decisions before the Supreme Court. DOJ has switched positions in some cases and settled others. Yet, almost all of these pleadings have been signed by the Acting Solicitor General, Elizabeth Prelogar. (Prelogar was recused in the ACA case; Deputy SG Kneedler withdrew the government's prior brief). To date, President Biden has not even nominated a Solicitor General. What's the hold up?

After the election, there was a smattering of writings suggesting that Biden should nominate an African American woman for the job. But in January, we learned that a leading contender, California Supreme Court Justice Leondra Kruger "twice declined the job." Two months later, still silence.

Last week, Elizabeth Wydra of the Constitutional Accountability Center urged Biden to nominate an SG "to meet this historic moment."

Given renewed attacks on the right to vote by some state legislatures, as well as ongoing police violence against Black people and hate crimes targeting people of color, voting rights and racial equity are sure to dominate our nation's legal agenda for years to come. Often, those disputes will culminate before the nine justices of the U.S. Supreme Court.

That makes another, less visible, office in the Justice Department — solicitor general of the United States — a critically important position for Biden to fill.

The question is whether he will select a nominee ready to meet this fraught moment in our history and help honor the second founding of our nation that Garland so eloquently invoked.

The time for such bold leadership is upon us again. Biden has a historic opportunity to choose a solicitor general worthy of Bristow and Marshall. Our times demand nothing less.

This timely op-ed suggests that there is still internal debates about who should be selected. Wydra wants Biden to go big. Presumably, some other faction wants Biden to play it safe. I suspect race will play some factor here. If Biden selects a white man, then sectors of his base will be unhappy. Back in January, the National Law Journal floated Andy Pincus and David Frederick. Progressives for sure, but white men. It's possible that Prelogar becomes the ultimate nominee. She is a female, but is also white. Will her nomination be enough to meet "this historic moment"?

On a related topic, what about the Office of Legal Counsel? Who is running the show now? The administration has made several important legal decisions in the last few months. Someone has to be advising the White House.