The interim appointment of an Acting Principal Deputy Solicitor General this week got me thinking about the choice of a successor to Elena Kagan as Solicitor General. I don’t know precisely where the process stands (and in fact, I don’t know who will make the decision), but as with the choice of a nominee to the Supreme Court, the potential candidates and relevant considerations are well known. In the end, I think that Neal Katyal will be named as the next Solicitor General.
For months, chatter from the Department of Justice has identified the same two candidates for the position: Don Verrilli and Neal Katyal. Full disclosure, I know both personally and I think both would do a terrific job. My own personal views don’t much matter, but I expect that all the repeat players in the Supreme Court bar would agree.
Verrilli is the former co-head (with Paul Smith) of the Supreme Court and appellate practice at the national law firm Jenner & Block. He was not only deeply respected as one of the finest lawyers before the Court (and elsewhere) both in writing and as an oral advocate, but also beloved as the consummate gentleman. The Attorney General named him to a very senior position (Associate Deputy Attorney General) and he then subsequently moved to the White House Counsel’s Office. Praise for his work in both positions has been uniform.
Katyal is the Acting Solicitor General, having served as the Principal Deputy Solicitor General throughout the Administration. In the Clinton Administration, he served as National Security Advisor in the Department of Justice. He then was a very well known academic (focusing on national security questions) who also practiced before the Court. He was among a handful of lawyers who formed an advisory body to Barack Obama during the campaign. Katyal’s work before the Court was very highly regarded, including his victory in Hamdan v. Rumsfeld. (Another disclosure, I was co-counsel in Hamdan, but my role was relatively minor.) Katyal’s reputation has been sterling, both within the Office of Solicitor General and in his interactions with the broader Department of Justice and the government generally.
The considerations of reputation and experience put Verrilli and Katyal on relatively even footing.  But I expect that three factors will collectively tilt the decision in Katyal’s favor.
First, the nature of Katyal’s Supreme Court experience is distinct: he has served not only as the Principal Deputy Solicitor General, but for a considerable time he has been the Acting Solicitor General. That intense experience in representing the United States in briefing and arguing cases before the Court over most of two Terms cannot be duplicated in any other capacity. Relatedly, Katyal necessarily has an extensive familiarity with the operation of the Office, which by all accounts is running very smoothly – not only internally, but also (just as important) in its relationships with the rest of the government.
Second, there is a tradition of elevating the Principal Deputy to the position of Solicitor General. In fact, so far as I can tell, every time the Solicitor General departed during an Administration since the position of Principal Deputy was created, the Deputy has been promoted. (Greg Garre was Paul Clement’s Deputy; Clement was Ted Olson’s Deputy; Barbara Underwood was Seth Waxman’s Deputy; Waxman was Walter Dellinger’s Deputy; and Charles Fried was Rex Lee’s Deputy.)
Traditions obviously can be broken, but this one seems particularly sensible. As discussed above, the Principal Deputy (who then uniformly serves as the Acting Solicitor General) develops tremendous experience before the Court and in running the Office. Selecting a different nominee also has the potential to undercut somewhat the Acting Solicitor General. Here, if the Administration selects Verrilli, Katyal will be in an awkward position during the inevitably extended period while the vetting and confirmation process will move forward. The nomination of someone other than the Acting Solicitor General also could send a negative signal to the Court and undercut the Administration’s position in the cases in which Katyal appeared in the interim.
In addition, given the tradition of the Office, the initial choice of Katyal as Principal Deputy seems to reflect a presumption that he would be elevated. As I mentioned, he was an early supporter of the President and played a significant legal advisory role in the campaign. Nothing since the election would seem to undercut the ordinary path to his elevation.
Third, Katyal has broad support in the Republican legal establishment that should smooth the confirmation process. My intuition when I decided to write this piece was actually the opposite: that Katyal’s representation of Hamdan would present an obstacle to his nomination and confirmation. (Verrilli has somewhat similar issues, given that (like me) in private practice he generally appeared on the left-leaning side of cases.) But it turns out that conservatives have recognized that Katyal’s role in Hamdan was entirely appropriate and that he has an exceptionally strong record on national security questions. He not only worked on national security issues for the government prior to Hamdan, but as an academic supported the use of national security courts (with Jack Goldsmith), and he subsequently represented the Obama Administration in successfully arguing against both the challenge to rendition in the Arar case and the claim that habeas corpus rights should be extended to detainees held at Bagram Air Force Base (drawing criticism from the left and the New York Times editorial page). For conservatives rejecting criticism of Katyal’s work in Hamdan, see this piece by the Wall Street Journal editorial page; this piece by Reagan Solicitor General Charles Fried; and these articles quoting Ted Olson and Richard Epstein.
Ultimately, I agree with the consensus that either Don Verrilli or Neal Katyal would make a great Solicitor General. For a few reasons, I think it’s simply more likely that Katyal will be selected.
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