Overview:
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One of the top officials in the Department of Justice, the United States Solicitor General represents the federal government in cases before the US Supreme Court. The solicitor general also decides when the United States should appeal a case it has lost in lower federal and state courts, when it should file a brief amicus curiae and when the United States should intervene to defend the constitutionality of an act of Congress. During the years of the Bush administration, the solicitor general has been deeply involved in legal proceedings designed to expand the White House’s efforts to spy on and indefinitely jail terrorism suspects.
History:
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As part of the first four cabinet positions to assist the President, the US Attorney General was established under the Judiciary Act of 1789. The act provided that the AG “prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned.” Unlike the other cabinet posts, the AG was not in charge of a department (the Department of Justice would be created later), and the nation’s top legal officer was not given any staff during its first few decades.
After several failed attempts to convince Congress to expand the office of the Attorney General, legislation was adopted in 1829. But the measure, led by Senator Daniel Webster, did not bolster the capability of the AG. Instead, it created a Solicitor of the Treasury with authority over all Treasury lawsuits and to provide rules for the district attorneys around the country to follow in regard to all civil litigation in which the United States was a party.
Supporters of the AG were not happy with Webster’s legislation and continued over the next several decades to advocate, both in Congress and for a presidential executive order, to give greater legal authority to the Attorney General, including placing the oversight of the district attorneys under the AG.
In June 1868 Congress authorized the Attorney General to control all government litigation in the Court of Claims and provided for the creation of two Assistant Attorneys General and additional clerical staff. Two years later, lawmakers established the Department of Justice, which further expanded the legal operations and authority of the AG. Included in the new Justice Department was the position of solicitor general, designated to represent the United States in court.
The first men to serve as solicitor general argued dozens of cases before the US Supreme Court on behalf of the federal government. These duties took up so much time that the solicitor general was unable to address legal matters in lower courts. To fix this shortcoming, Congress in 1930 created the position of assistant solicitor general to relieve some of the legal duties of the solicitor general. Later, the position of assistant solicitor general was renamed the assistant attorney general for legal counsel.
In time, the responsibility of representing the US government in lower courts was moved entirely out of the solicitor general’s office, along with other administrative duties with which it was originally charged. However, the solicitor general has not lacked for work. In 1998, the office handled 2,800 cases before the US Supreme Court.
The Solicitor General in Historical Context
What it Does:
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The United States Solicitor General functions as the federal government’s trial lawyer in matters before the US Supreme Court. In addition to this function, the solicitor general decides when the United States should appeal a case it has lost in lower federal and state courts, when it should file a brief amicus curiae and when the United States should intervene to defend the constitutionality of an act of Congress. The United States is involved in approximately two-thirds of all the cases the US Supreme Court hears each year.
The solicitor general is the fourth-ranking officer in the US Justice Department behind the US Attorney General, the Deputy Attorney General and the Associate Attorney General.
The Office of the Solicitor General consists of four deputy solicitors general and 17 assistants to the solicitor general, as well as support staff, who participate in preparing the petitions, briefs and other papers filed by the government in the Supreme Court. The solicitor general conducts the oral arguments before the Supreme Court. Those cases not argued by the solicitor general personally are assigned either to an assistant to the solicitor general or to another government attorney. The vast majority of government cases are argued by the solicitor general or one of the office attorneys.
The solicitor general has been nicknamed the “10th justice” because of the amount of time he spends before the Supreme Court and the frequent interactions between staffs of both the court and the solicitor’s office. As a result of the time spent arguing before the highest court in the land, the solicitor general is considered to be among the most influential and knowledgeable people about the Supreme Court and constitutional law, other than the justices themselves. Many in the legal world consider the solicitor general to be the highest office that a practicing trial lawyer can attain in the United States—even higher than the Attorney General, which is regarded more as a political job.
Controversies:
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Olson Presents Case for Secret Wire Taps
Created in 1978, the ultra-secret Foreign Intelligence Surveillance Court did not conduct its first formal hearing until 2002, at the request of the Bush administration. Leading a high-powered group of attorneys and administration officials was then Solicitor General Theodore Olson, who pleaded for permission to expand the jurisdiction of the Foreign Intelligence Surveillance Act to allow prosecutors and local law enforcement agencies to be involved in the administration’s surveillance program of suspected terrorists and to have access to confidential information.
Olson also argued that by approving the administration’s surveillance requests, the FISC would help law enforcement uncover information about suspects that, even if it was unrelated to terrorism, might be useful to blackmail or intimidate a terrorism suspect into cooperating with the authorities.
The solicitor general further asked for the court to allow an important change in the wording of warrants that could have allowed the government to greatly expand its spying targets. When the FISC judges questioned Olson on what the expanded surveillance powers would be used for, the solicitor general avoided answering directly, much to the frustration of one judge.
What is the Bush Administration Trying to Hide? (by David Wallechinsky, Huffington Post)
America a Battlefield, Says Clement
As part of the Bush administration’s hard-line approach with suspected terrorists in custody, Solicitor General Paul Clement argued before a federal appeals court in 2005 that the federal government was within its legal rights to jail a US citizen indefinitely. The matter involved Jose Padilla, a former Chicago gang member and Muslim convert, who was taken into custody by the military on June 9, 2002, and had been held without trial ever since.
The judges who heard the case were concerned with how to handle Padilla in light of the US Supreme Court’s ruling on Yaser Esam Hamdi, a US citizen who was captured by the military with Taliban forces in Afghanistan and placed in a Navy brig in Norfolk. The Supreme Court ruled that his detention was lawful, but that he was entitled to a hearing to challenge the allegations against him.
While making his oral argument, Clement was interrupted by Judge Michael Luttig who cited the Hamdi decision to the U.S. Court of Appeals for the 4th Circuit, saying that case involved a battlefield detention, while the Padilla case did not. Clement disagreed, prompting Luttig to state, “Those accusations don’t get you very far unless you’re prepared to boldly say the United States is a battlefield in the war on terror.”
To which Clement answered, “I can say that, and I can say it boldly.”
U.S. a Battlefield, Solicitor General Tells Judges (by Tom Jackman, Washington Post)
Solicitor General under Fire Over Gun Case
In March 2008, Solicitor General Paul Clement argued before the US Supreme Court that a case involving Washington DC’s toughest-in-the-nation gun control law should be returned to a lower appeals court for another review. The law, which banned all handguns in the district and required larger weapons such as rifles to be disassembled, was struck down in DC v. Heller by the US Court of Appeals for the District of Columbia Circuit.
Gun owners and their supporters, such as the National Rifle Association and the Bush administration, applauded the decision. But Clement argued before the Supreme Court that the appellate court took too “categorical” an approach, one that threatened the constitutionality of federal gun laws, like the current ban on machine guns. Thus, Clement asked the justices to vacate the decision and send the case back to the appeals court for a more “nuanced appraisal” of the issue.
The brief that Clement filed before the Supreme Court made it clear that the solicitor general considered the DC gun control law unconstitutional. But this was not enough to keep high level officials in the Bush administration from complaining about Clement’s actions in the case. Vice President Dick Cheney was reportedly so upset
that he took the unusual step for a vice president of signing on to a brief filed by more than 300 members of Congress that asked the Supreme Court to declare the District of Columbia law “unconstitutional per se” (Clement’s brief said that a per se rule was inappropriate in the context of the Second Amendment).
The conservative columnist Robert D. Novak, who often served as a conduit for views from inside the Bush administration, wrote that Clement was being pressured within the administration to alter his argument before facing the justices. Clement did not. Two months later, though, Clement did announce his intention to retire.
Gun Case Causes Bush Administration Rift (by Linda Greenhouse, New York Times)
Moving Targets (by Dahlia Lithwick, Slate)
Gun Battle at the White House? (by Robert D. Novak, Washington Post)
Former Directors:
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Paul D. Clement (June 2005 to June 2008)
A native of Cedarburg, Wisconsin, Paul D. Clement served as the 43rd Solicitor General from June 2005 to June 2008. He received his bachelor’s degree summa cum laude from the Georgetown University School of Foreign Service and a master’s degree in economics from Cambridge University. He graduated magna cum laude from Harvard Law School, where he was the Supreme Court editor of the Harvard Law Review.
Following graduation, Clement clerked for Judge Laurence H. Silberman of the US Court of Appeals for the DC Circuit and for Associate Justice Antonin Scalia of the US Supreme Court. After his clerkships, he worked as an associate in the Washington, DC office of Kirkland & Ellis. Clement went on to serve as chief counsel of the US Senate Subcommittee on the Constitution, Federalism and Property Rights. Afterwards, he was a partner in the Washington, DC office of King & Spalding, where he headed the firm’s appellate practice. Clement also served from 1998 to 2004 as an adjunct professor at the Georgetown University Law Center, taught a seminar on the separation of powers.
Clement joined the Department of Justice in February of 2001. Before his confirmation as solicitor general, he served as acting solicitor general for nearly a year and as principal deputy solicitor general. He has argued 49 cases before the US Supreme Court, including McConnell v. FEC, Tennessee v. Lane, Rumsfeld v. Padilla, United States v. Booker and Gonzales v. Raich.
Theodore B. Olson (June 2001 to July 2004)
A native of Chicago, IL, Theodore B. Olson was the 42nd Solicitor General of the United States. Olson received his bachelor’s degree cum laude from the University of the Pacific in Stockton, CA, where he received awards as the outstanding graduating student in both journalism and forensics, and his law degree from UC Berkeley (Boalt Hall), where he was a member of the California Law Review and Order of the Coif.
Olson was a partner in the Los Angeles office of Gibson, Dunn & Crutcher, where he practiced constitutional, media, commercial and appellate litigation, before serving as assistant attorney general for the Office of Legal Counsel from 1981 to 1984 during the Reagan administration. During that time, Olson was part of a scandal involving Justice Department lawyers who told officials at the Environmental Protection Agency that they could withhold evidence from Congressional investigators.
After leaving the administration, Olson returned to Gibson, Dunn & Crutcher in its Washington, DC office, engaging in the practice of constitutional and appellate law and general litigation and serving as partner-in-charge of that office on the firm’s executive and management committees and as co-chair of the firm’s appellate and constitutional law practice group. Olson was also accused of being involved in the sexual harassment lawsuit filed by Paula Jones against President Bill Clinton.
Before joining the Bush administration as Solicitor General, Olson successfully represented candidates George W. Bush and Dick Cheney before the US Supreme Court in Bush v. Gore, a case that helped decide the 2000 presidential election in favor of Bush.
While serving as Solicitor General, Olson argued numerous cases before the Supreme Court, including those involving constitutional and federal statutory issues regarding copyright, telecommunications, federal securities regulation, antitrust, the environment, school vouchers, the Internet, the 2000 census, property rights, punitive damages, criminal law, immigration, the right to a jury trial, due process, voting rights, equal protection, separation of powers, the ex post facto clause, the speech, press and religion clauses of the First Amendment, the powers of the President, and the constitutionality of the McCain-Feingold campaign finance reform law.
Olson is a fellow of both the American College of Trial Lawyers and the American Academy of Appellate Lawyers. He is also a founding member of the Federalist Society, a conservative legal organization. He has written and lectured extensively on appellate advocacy, oral advocacy in the courtroom and constitutional law.
Since leaving the Solicitor General’s office, Olson has returned to private practice, helping to represent the state of Rhode Island in a Native American land case for $200,000 and a mining company in West Virginia.
State hires ex-U.S. solicitor general in Indian land dispute (Associated Press)
Olson to argue Harman case against Massey before Supreme Court (by Paul Nyden, Sunday Gazette-Mail)
Profile of a right-wing conspirator (by Martin McLaughlin, World Socialist)
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