Law Deans Are Said to Be Top U.S. Solicitor General Candidates
By Greg Stohr and James Rowley
Jan. 2 (Bloomberg) -- The first female deans of the Harvard and Stanford law schools are the top candidates to serve as Barack Obama’s voice at the U.S. Supreme Court, according to people familiar with the selection process.
Harvard Law School Dean Elena Kagan, 48, and former Stanford Law School Dean Kathleen Sullivan, 53, are the two leading contenders for the position of solicitor general, a position informally known as the “tenth justice.”
For either, the job ultimately might be a step toward a seat on the Supreme Court itself. The next solicitor general will preside over an almost-certain shift of the federal government’s position before the high court on terrorism, product-liability lawsuits and other issues. No woman has ever served as solicitor general on a permanent basis.
“They already have to be on any list of potential Supreme Court nominations for the administration,” said Jeffrey Fisher, a Stanford law professor who argues before the high court. “Having the experience of being solicitor general would only accentuate their portfolio.”
Four solicitors general -- William Howard Taft, Stanley Reed, Robert Jackson and Thurgood Marshall -- have gone on to serve on the Supreme Court. A fifth, Robert Bork, was nominated and then rejected by the Senate.
Kagan became a top candidate for solicitor general after being passed over for deputy attorney general, a slot set to go to Washington lawyer David Ogden, people familiar with the selection process said.
Ogden, 55, a lawyer with Wilmer Hale, ran the department’s civil division during the Clinton administration and now leads President-elect Obama’s Justice Department transition team.
Ideological Tensions
Kagan, seen by some people involved in the transition as the favorite for solicitor general, would likely garner bipartisan support. She won plaudits from liberals and conservatives alike for smoothing over the ideological tensions that plagued the Harvard Law School faculty before she became dean in 2003.
“She would be terrific,” said Harvard constitutional law professor Charles Fried, who was President Ronald Reagan’s solicitor general. “She’s very, very smart. She’s a very fine lawyer. She understands everything, and she particularly has been a student of constitutional law.”
Kagan, who has never argued a Supreme Court case, has a longstanding connection to Obama. The two worked on the University of Chicago Law School faculty at the same time during the 1990s.
Kagan is also a potential appointee to the U.S. Court of Appeals for the District of Columbia Circuit, another position that would put her in line for a later Supreme Court nomination. Four of the high court’s nine current justices sat on the D.C. Circuit before being elevated.
Clinton Nomination
President Bill Clinton tried to place her on that court in 1999, only to see the nomination die without a vote in the Republican-controlled Senate.
Kagan, like Obama, got her law degree from Harvard. She clerked at the Supreme Court for Marshall, spent two years in private practice and served in Clinton’s White House in legal and domestic-policy positions.
Sullivan is a Harvard Law School graduate who taught constitutional law there before she moved to Stanford in 1993. She became the first female dean of a school at Stanford University when she was appointed dean of the law school in 1999.
Sullivan stepped down at Stanford in 2004, remaining as a professor while joining the law firm Quinn Emanuel Urquhart Oliver & Hedges.
‘Natural’ Selection
Sullivan would be a “natural” selection given Obama’s “insistence on excellence rather than just personal ties,” said Tom Goldstein, a Washington lawyer who has worked with Sullivan on a number of Supreme Court cases.
Sullivan is the lead editor on a widely used constitutional law case book. She suffered a public embarrassment in 2005 when she failed the California bar exam before passing on her second try the following year.
Sullivan has argued four cases before the Supreme Court, including a 1991 tax dispute that pitted her against now-Chief Justice John Roberts, who was then a government lawyer. Roberts won that case on a 9-0 vote.
As a former constitutional law professor, Obama may take a personal interest in the solicitor general position, as well as others at the Justice Department. So far, the president-elect has gone public only with his selection of Eric Holder, 57, to lead the department.
Antitrust Division
The choice to lead the department’s antitrust division may signal a more aggressive approach toward anti-competitive conduct. Possibilities include antitrust litigators William Baer and Jonathan Jacobson, along with Harvard law professor Einer Elhauge.
Baer is also a possibility to become chairman of the Federal Trade Commission. He previously served as director of the agency’s competition bureau, making his mark by successfully challenging mergers including Staples Inc.’s purchase of rival office-products store chain Office Depot Inc.
Other candidates for chairman of the agency include FTC Commissioner Jonathan Leibowitz and University of Colorado law professor Philip Weiser.
Last Updated: January 2, 2009 17:00 EST |
