SOLICITOR GENERAL: “the tenth Justice”

Having never really thought about the nature of this federal position, I decided to do some research.  I’m glad I did.   In doing so, I was able to answer for myself a question being asked by some who have reacted to President Obama’s nomination of Elena Kagan to serve as a Justice on the United States Supreme Court.  Their concern is that she has never held a position of judge, and therefore may lack the experience necessary to serve in this position.  It seemed like a reasonable criticism until my research revealed some facts.  It is clear to me now why the President is so high on her.  I now understand why the nickname for any Solicitor General is “the tenth Justice.” Here is the clearest definition of the position I could find:

“The United States Solicitor General is the person appointed to represent the Government of the United States before the Supreme Court of the United States. Currently, the Solicitor General is Elena Kagan, who was confirmed by the United States Senate on March 19, 2009.

The Solicitor General determines the legal position that the United States will take in the Supreme Court. In addition to supervising and conducting cases in which the government is a party, the Solicitor General’s office also files amicus curiae briefs in cases in which the federal government has a significant interest in the legal issue. The Solicitor General’s office argues on behalf of the government in virtually every case in which the United States is a party, and also argues in most of the cases in which the government has filed an amicus brief. In the federal courts of appeals, the Office of the Solicitor General reviews cases decided against the United States and determines whether the government will seek review in the Supreme Court. The Solicitor General’s office also reviews cases decided against the United States in the federal district courts and approves every case in which the government files an appeal.”  (Wikipedia)

I’m impressed.  It means that the person in this position spends most of his or her time preparing to appear before the Supreme Court or Federal District Courts and then representing the country before those courts.  Knowledge of the working of those courts is essential.  The protocols, standards, and regulations are an intimate part of every workday.  Apart from actually sitting on the Supreme Court, one cannot get closer.  It satisfied me that as far as this credential is concerned, I am convinced that Elena Kagan is qualified.   That question can be put aside and emphasis on other questions can emerge.

The public vetting of a Supreme Court Justice nominee tends to be a cross between a formal inquiry and a circus.  Depending upon one’s motives, the process is either helpful and clarifying or embarrassing and childish.  We have seen both extremes in recent years.  At one time it was the position of the Senate (which has the responsibility of approving the nomination) to affirm the choice of the President de facto. The point was that it was the privilege of the President to make such an appointment and the Senate should not stand in his way.  To this day there are some who hold to this position.

But other see this moment as a time to flex muscles.  Political preferences and personal agendas get splashed across television screens and front pages.  Many times one is left wondering if the questions have anything to do with the nominee; they are ideological in nature and tell us more about the questioner than the person being interviewed.  Some people require a nominee to be filtered through a pre-existing screen based upon such issues as second amendment rights, Roe v. Wade, or “don’t ask/don’t tell.”   Some get nasty when the nominee refuses to tell the public how she/he will vote on a specific case.  That, of course, is verboten.   No nominee is supposed to have a pre-existing opinion on a case, but is expected to do research along with the other eight Justices before voting on an opinion of the court.  That escapes the thinking of some who just want to scuttle the nomination.

I look forward to the hearings involving Elena Kagan.  Her role as Solicitor General will be a key factor in this process.  My suspicion is that she will redeem her self well when confronted by legitimate questions from serious Senators.  The others?  Who knows?  I’m sure she has faced the ridiculous in her public life.  Her vetting as nominee for Solicitor General was intense, but in the end there was general enthusiasm for her appointment.

Photo Credit: wikipedia

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