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NOT THE TENTH JUSTICE, BUT THE PRESIDENT'S LAWYER: Thoughts on the Theodore Olson Confirmation Controversy


In the controversy over the confirmation of Theodore Olson as Solicitor General, there has been a great deal written and spoken about the supposed "independence" of that office from the rest of the executive branch.

Solicitors General: The Historical Record

Let's go back half a century, to the Eisenhower administration. Ike personally edited the Solicitor General's brief in the famous 1954 desegregation case, Brown v. Board of Education.

In the Kennedy administration, Solicitor General Archibald Cox was constantly caught in a pincers movement between Civil Rights Division chief Burke Marshall and the President's brother, Attorney General Robert Kennedy.

In the seventies, under Presidents Nixon and Ford, Solicitor General Robert Bork was not reluctant to present a legal philosophy to the Court that was markedly different from the philosophy that had been followed by his sixties predecessors in the Johnson administration.

During the Carter administration, the story was the same. For instance, while the government's brief was being prepared in the famous Bakke case (involving affirmative action in medical school admissions), Attorney General Griffin Bell collected suggestions from various parts of the White House, mixed them with his own, and passed them on to the Solicitor General. Not only that, but the brief was not filed until after President Carter himself had approved it.

During the Reagan and Bush administrations, in which I served, the Solicitors General likewise all saw themselves as advancing a legal philosophy in sync with those of their presidents.

The Clinton administration was certainly no different. Solicitor General Drew S. Days III gave a speech on April 5, 1994–less than fifteen months after the new President had taken office–in which he acknowledged that the office had already changed its position from that of the prior administration in at least five and perhaps six cases.

Indeed, the positions taken by Days during his tenure were controversial enough, and were rejected by the Supreme Court consistently enough (for instance, he lost four of the five cases in the early flip-flops), that he was called before the Republican-controlled Senate Judiciary Committee at special hearings in November 1995.

And later on, under Solicitor General Seth Waxman, the Clinton administration took the extreme step of refusing to defend the constitutionality of a federal statute–involving Miranda warnings–in a case being argued before the Supreme Court. He must have been implementing a high-level administration decision, for he was certainly not following prior office practice.

There is nothing wrong with the Solicitor General's advocating the views of his administration. Our Constitution creates three separate branches for the federal government, and gives each of them unique power. These powers are separated, not shared.

Accordingly, the Solicitor General is no "tenth justice," the title of Lincoln Caplan's book to the contrary notwithstanding, for the Supreme Court's power is exclusive and unique. Moreover, he is an executive-branch, not a judicial-branch, official.

It would be very disturbing if any executive-branch official owed a dual allegiance, to both the Court and the President. His allegiance is to the President, and to the Constitution, not the Court.

It would also be very disturbing if the Office of the Solicitor General were seen as a sort of independent, fourth branch — separate from the other three in a way inconsistent with the Constitution — accountable to its own precedents and practices, no matter what the President wants.

Important Duties and Standards of the Solicitor General Remain

Those who argue to the contrary–from either side of the aisle–almost always have a partisan ax to grind. They do not want the Solicitor General to be fully loyal to the President and his policies because they don't like the President and his policies.

Does the argument that Solicitors General have never been, and should not be, independent then mean that the Solicitor General should file political tracts rather than legal briefs, do sloppy research, misrepresent precedents, and lie to the Supreme Court? Of course not.

The Solicitor General should not lie to a coequal branch of government–or anyone else for that matter–just as the President himself should not. And, indeed, the Solicitor General should hold himself to a higher standard of advocacy and scholarship than other advocates–in part as a matter of interbranch comity, in part because the stakes are often higher in the government's cases, and in part because he knows that he will be back before the Court again and again.

But the Solicitor General's place in the executive branch also means that he must listen to the legal and policy concerns of others within the administration. In particular, when the President or the President's principal legal officer, the Attorney General, tells the Solicitor General that he has gotten it wrong, the Solicitor General must listen.

Roger Clegg is general counsel of the Center for Equal Opportunity in Washington, D.C. He served as an Assistant to the Solicitor General from 1985 to 1987.

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