The Volokh Conspiracy

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Bloomberg: Acting SG Prelogar Is Being Vetted For SG

"The delay in announcing an SG nominee ... is likely the result of haggling between the DOJ and the White House"


After nearly 200 days, we may be finally closer to a Solicitor General nominee. Kimberly Strawbridge Robinson has the scoop at Bloomberg Law:

The White House is vetting acting Solicitor General Elizabeth Prelogar to be nominated for the job on a permanent basis, according to two former SG's office attorneys.

Why the delay? Apparently, there is squabbling between the White House and DOJ:

The delay in announcing an SG nominee is without precedent in recent decades and is likely the result of haggling between the DOJ and the White House over who should get the nod, according to several former SG's office attorneys.

Prelogar has support within the Justice Department, including from Attorney General Merrick Garland, for whom she clerked when he was a federal appeals court judge.

But the White House, which has stressed the importance of racial and professional diversity in high-profile positions, would prefer a more diverse candidate, according to several former SG's office attorneys.

What a world to live in, where the second-ever female Solicitor General would not be diverse enough because she's white. If you're not the "first," you don't count.

But the White House better hurry up! The Vacancy Reform Act goes tick-tock:

Under the Vacancies Reform Act, the White House has only until mid-November to name a nominee before the acting SG can no longer serve in the role. Until that time, Prelogar and her four deputy solicitors general—career positions within the office that often straddle multiple administrations—will have to fill in the gaps.

Maybe that was the strategy all along. String along the diversity advocates, wait until the deadline, and at the last minute, pick the white woman.

If Prelogar is the nominee, Senate Republicans should inquire about the eviction moratorium debacle. It is absolutely fair game to ask Prelogar if she advised on the process, and whether the White House disregarded OLC's opinion. Senators should also ask about Biden's strategy of "hoping" the litigation drags on so the money can be distributed. She won't answer the question, of course, but Senators should still ask.