Solicitor General
Donald Verrilli Confirmed as the New SG
US Files Invitation Brief Opposing Cert in Brown v. Rincon Band (IGRA Revenue Sharing Case)
Here is the brief:
More Indian Law Practitioners on the SG Nomination Shortlist
Maybe “practitioners” is a bit of a stretch, but most of the names on the shortlist have some experience in Indian Law.
From BLT:
Replacing Kagan: Speculation is swirling on potential nominees to replace Solicitor General Elena Kagan if she is confirmed for a slot on the U.S. Supreme Court, The National Law Journalreports today. Washington state Gov. Christine Gregoire is reportedly on a White House short list for Kagan’s post. The list of names being mentioned include: Principal deputy solicitor general Neal Katyal, former Jenner & Block partner Donald Verrilli, current Kellogg, Huber, Hansen, Todd, Evans & Figel partner David Frederick, former New York solicitor general Preeta Bansal, former Morrison & Foerster partner Beth Brinkmann and partner Patricia Millett of Akin Gump Strauss Hauer & Feld.
Washington Gov. Christine Gregoire on Short List for Solicitor General?
This would be an interesting development, as Gov. Gregoire has some Indian law experience.
From the Seattle Times:
OLYMPIA — Gov. Chris Gregoire is on the White House list to replace Elena Kagan as the solicitor general. The question is, would she take the job if it’s offered?
So far, the governor isn’t saying.
President Obama this week nominated Kagan to the U.S. Supreme Court.
Gregoire’s press office at first said she wasn’t on any list. But after the White House on Wednesday confirmed the governor was being considered, her spokesman, Cory Curtis, said: “Nobody has offered her the job yet, or even told her she’s on the shortlist.”
When asked if she’d take the job if offered, Curtis said: “She hasn’t been offered the job yet, so she can’t answer that.”
A White House official declined to disclose other names under consideration for solicitor general, who represents the U.S. government before the Supreme Court.
Gregoire has been rumored as a candidate for White House posts ever since Obama was elected. There was speculation she could be a candidate for commerce secretary (a job given to former Gov. Gary Locke) and even the U.S. Supreme Court.
Last year, amid talk she was in line for a White House job, Gregoire told reporters she ran for re-election in 2008 because she wanted to be governor: “I made it clear early on I would not accept an appointment.”
It’s not clear if her response would be different this time.
Other names are being floated for the job. CNN reported that White House lawyer Donald Verrilli and Kagan’s deputy, Neal Katyal, are in contention.
Gregoire has an extensive legal background. She got her law degree in 1977 from Gonzaga University. She worked as an attorney in the state Attorney General’s office from 1977 to 1988. And she was elected state Attorney General in 1992. She served in that role nearly 12 years before running for governor in 2004.
According to the Attorney General’s office, she personally argued three cases — on matters ranging from stream-flow requirements to the state obscenity law — before the U.S. Supreme Court during her career there. Two as attorney general and one as a deputy. She won all of them.
New Papers about the Solicitor General
How fortuitous that my paper on the Solicitor General’s strange lack of success defending tribal interests before the Supreme Court becomes available the same day Patricia Millett’s paper on stategies for obtaining amicus help from the Solicitor General’s Office goes up on SCOTUSBlog!?!
Here’s the write-up on Ms. Millett’s paper from SCOTUSBlog:
Patricia Millett recently published this article (PDF download) in the Tenth Anniversary edition of the Journal of Appellate Practice and Process (Vol. 10, No. 1; Spring 2009). It addresses the Supreme Court’s unique practice — not mentioned in the Court’s rules — of calling for the views of the Solicitor General at the certiorari stage, and the process of obtaining amicus support from the Solicitor General in such cases, as well as in cases in which review has been granted.
And my abstract (paper download here):
This short paper prepared for the 2009 Federal Bar Association’s Annual Meeting offers preliminary results of a study of the OSG in the Supreme Court from the 1998 through the 2008 Terms. I study the OSG’s success rates before the Court in every stage of litigation, from the certiorari process, the Court’s calls for the views of the Solicitor General, and on the merits of the cases that reach final decision after oral argument.
The paper begins with the preliminary data on the OSG’s success rate in Indian law cases. The data demonstrates that the OSG retains its success rate in both the certiorari process and on the merits when the United States is in opposition to tribal interests. But when the OSG sits as a party alongside tribal interests, and especially when the OSG acts as an amicus siding with tribal interests, the OSG’s success rate drops dramatically.
New Article on the Mystery of CFRs and CVSGs
The article, “An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General”, appears in the George Mason Law Review. Here is Marcia Coyle’s coverage (thanks to Mike McBride for this):
Study shows influence of SG in high court cases granted cert
Marcia Coyle (article here, subscription required)
06-16-2009
So you’ve taken your client’s case all the way to the Supreme Court and the justices have asked the solicitor general of the United States whether they should grant review. What are your chances of a nod in your favor?
Not bad, according to an unusual study of two of the high court’s most important “information-gathering” tools — a call for the views of the solicitor general, known as a CVSG, and a call for a response, or CFR, to a petition for certiorari. The Court granted briefing on the merits in 34 percent of cases in which it called for the views of the solicitor general, a 37-time increase above the grant rate for all petitions. And, the justices follow the recommendation of the solicitor general to grant or deny a case roughly 80 percent of the time, according to the study.
David Thompson, currently a clerk to Justice Antonin Scalia, and Melanie Wachtell, policy director for the nonprofit Tobin Project, are both Stanford Law graduates who participated in the law school’s Supreme Court clinic. “We decided we were interested in writing a paper, and we felt if we were going to embark on a long paper to be published in a legal journal, we wanted it to be something that really contributed,” recalled Wachtell.
Obama Adminstration Opposes Office of Native Hawaiian Affairs in SCT Case
From the Hawaiian Reporter (via How Appealing):
The state of Hawaii and state Office of Hawaiian Affairs have contracted two of the nation’s top legal “heavy hitters” to back their respective side in a case being presented to the U.S. Supreme Court later this month over who has the right to sell the state’s “ceded lands” or crown lands left by Hawaiian royalty to the state.State attorney general Mark Bennett, Hawaii’s top state law enforcement officer, will present oral arguments himself on the state’s behalf in Hawaii v. Office of Hawaiian Affairs, No. 07-1372, but the state’s written brief is being prepared by Former Solicitor General of the United States, Seth Waxman, who is considered to be the “lawyer’s lawyer” on the most important cases before the Court.
Neal Katyal to Serve as Deputy Solicitor General
From SCOTUSBlog:
The Blog of Legal Times reported here that Georgetown Law School Professor Neal Katyal was the leading candidate to serve as Principal Deputy Solicitor General. That choice has now been finalized, and he will begin work in the Office on January 20.
Ed Kneedler Named Acting Solicitor General
Maybe it’s only for a few weeks, but congrats to Ed Kneedler, who has probably argued more Indian law cases before the Supreme Court than anyone in history.
Here’s the report (from BLT):
And from the White House comes word that veteran career Deputy SG Edwin Kneedler, with more than 100 oral arguments under his belt, will become acting solicitor general until a successor for Garre is confirmed. President-elect Barack Obama has appointed Harvard Law School Dean Elena Kagan to the post, but it is uncertain how long the confirmation process will take. For the near future, Garre will return to the law school where he received his J.D., George Washington University Law School. Garre will teach a course in constitutional law and the Supreme Court for the spring semester, says Gregory Maggs, senior associate dean for academic affairs.
Turtle Talk 
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