Former Solicitors General Reveal Important Role of Political Deputy

Charles Fried (U.S. Solicitor General 1985-89)

A powerful but little known position in the office of the Solicitor General of the United States, the “political deputy,” came to light in a roundtable discussion Friday at the 2010 Annual Meeting.

Five former solicitors general—Drew S. Days III, Charles Fried, Gregory Garre, Edwin Kneedler and Kenneth Starr—shared tales from their service in “Shaping the Law,” taking questions from moderator Marcia Coyle, chief Washington correspondent for the National Law Journal, and from the audience.

Fried, who, like the other panelists favored the term “principal” deputy, said he was the first “political deputy” in 1985.  That position, the solicitor general office’s number two spot, arose from necessity.  When the solicitor general is unavailable or must withdraw for one of a range of reasons, or when a “very delicate” issue that may be political arises, the principal deputy can act, said Fried.

Creating the position “meant there was always somebody present who was also a presidential appointee.”  Only the solicitor general and political deputy are appointed by the president.  The three other deputies and 16 assistants on staff are all career lawyers.

Kenneth Starr (U.S. Solicitor General 1989-93)

When the “political deputy” position was created, it was not well-received in the office, which was too insulated and removed from the rest of the Department of Justice, said Kneedler, who was appointed as acting solicitor general for three months in 2009 before Elena Kagan took over.  He said the office now fills several functions; it is a buffer from political influences, an “explainer” for critics who “can pick up a phone and learn” why a decision is made, a liaison with the White House, and a confident for the solicitor general in discussing issues the office chief would not  raise with a career lawyer.

Citing his “job interview” with the President Bill Clinton for the post, Days said he was asked to define the relationship between the president and the solicitor general, and responded, “It’s very simple, Mr. President.  You’re in the Constitution; the solicitor general is not.”  But he and his fellow panelists agreed the relationship is more complex.

“You know who the boss is,” said Starr, but in most cases “the boss will show prudence and allow the Solicitor General’s Office to operate with independence.”  On occasion, “the boss” will overrule, he noted, citing a civil rights case involving remediation of de jure discrimination in higher education.  One passage addressing remedies in the solicitor general’s brief “caused consternation to the presidents of black colleges,” who approached President George H.W. Bush, and a decision was made to remove it, after the brief was filed.  An amended brief was filed, and during oral arguments, Justice Antonin Scalia held them both in the air and asked which represented the position of the United States, recalled Starr.

Gregory Garre (U.S. Solicitor General 2008-09)

“There I thought the president was acting in the highest and noblest tradition,” he said, noting that there had never been an occasion in which a solicitor general had been forced to resign over principle.

Though the solicitor general represents the interest of the United States before the Supreme Court of the United States, deciding what that interest is can be challenging, and the panelists favored seeking input from a wide spectrum of appropriate government legal departments.  But Garre noted insight can rise from unexpected sources, pointing out that a blogger discovered the federal government interest in a case over whether it is constitutional to execute a person convicted of raping a child.

“Shaping the Law” was sponsored by the Section of Litigation, Law Student Division, Section of Antitrust Law, Section of Intellectual Property Law, and the Tort, Trial and Insurance Practice Section.

For video of the full session as well as clips, including one that features the solicitors general recalling their best and worst moments, visit the multimedia section of ABANow.org.