From Solicitor General to Supreme Court Nominee: Responsibilities, History, and the Nomination of Elena Kagan *

By Smelcer, Susan Navarro; Thomas, Kenneth R. | Current Politics and Economics of the United States, Canada and Mexico, April 1, 2011 | Go to article overview

From Solicitor General to Supreme Court Nominee: Responsibilities, History, and the Nomination of Elena Kagan *


Smelcer, Susan Navarro, Thomas, Kenneth R., Current Politics and Economics of the United States, Canada and Mexico


INTRODUCTION

On May 10, 2010, President Obama nominated Solicitor General Elena Kagan to replace retiring Justice John Paul Stevens. If confirmed, Elena Kagan would be the first serving Solicitor General to be appointed to the Court since the elevation of Thurgood Marshall in 1967. She would also be only the fifth of 111 Justices to come to the bench with such experience.

Given that Solicitor General Kagan has made few public statements on important legal and policy issues, some have looked to her record as Solicitor General for some indication of her views. Others have looked to her time as Solicitor General as an important element of her professional experience, especially in light of the criticism of some that her lack of judicial and litigation experience make her unqualified to sit on the bench. Understanding the role and responsibilities of the Solicitor General can provide a useful backdrop against which to evaluate Elena Kagan's statements and official actions and assess her professional qualifications.

This report examines both the office of the Solicitor General and the Justices who held that position before their elevation to the Court. First, the duties and responsibilities of the Solicitor General are discussed. Next, scholarly studies of the relationship between the Solicitor General and Supreme Court are examined. This research, conducted by political science and legal scholars, posits theoretical foundations and presents empirical evidence to explain the nature of the relationship between the Court and the Solicitor General's office. In each of these sections, particular attention is paid to the claim that a -special relationship" exists between the Court and the office of the Solicitor General. For those trying to assess the meaning of statements made by Elena Kagan in her capacity as Solicitor General, the discussion in these two sections may help place her comments and actions in context.

After examining the office of the Solicitor General and its success before the Court, the report describes the professional careers of the four Justices who served as Solicitor General before joining the Court: William Howard Taft, Stanley Reed, Robert Jackson, and Thurgood Marshall. Information on each Justice's Senate confirmation process is provided, with a focus on any relevant questions or issues that emerged in response to that Justice's service as Solicitor General.

The final section of the report examines the career of Elena Kagan, noting in particular her service as Solicitor General. As the current holder of this office, Elena Kagan is ultimately responsible for the government's appellate litigation before the Supreme Court. If confirmed, it is possible that she would have to recuse herself from a number cases in which the government took part during the Supreme Court term beginning in October 2010. Accordingly, the conditions under which Elena Kagan may have to recuse herself are discussed.

DUTIES AND RESPONSIBILITIES OF THE SOLICITOR GENERAL

The position of Solicitor General was created in 1870 at the same time as the Department of Justice [1]. The Solicitor General is the only federal public official required by statute to be -learned in the law" [2]. The Solicitor General, who is nominated by the President and confirmed by the Senate, is responsible for assisting the Attorney General with the performance of the duties of his or her office, [3] principally focusing on appellate litigation. To date, 45 individuals have served as Solicitor General. The Office of the Solicitor General also employs four Deputy Solicitors General, four recent law school graduates serving as legal fellows, and a small support staff.

The Office of the Solicitor General is generally responsible for coordinating executive branch litigation at all levels of appeal [4] and representing the executive branch in litigation before the Supreme Court [5] While the Solicitor General is appointed by the President, his or her client is seen to be the United States, and he or she is expected to represent the -interests" of that client during litigation [6]. …

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