The White House is vetting acting Solicitor General Elizabeth Prelogar to be nominated for the job on a permanent basis, according to two former SG’s office attorneys.
Prelogar, an appellate lawyer, has served as the Justice Department’s fourth-ranked attorney on an acting basis since January, arguing two cases before the justices in that role last term.
The delay in announcing an SG nominee is without precedent in recent decades and is likely the result of haggling between the DOJ and the White House over who should get the nod, according to several former SG’s office attorneys.
Prelogar has support within the Justice Department, including from Attorney General Merrick Garland, for whom she clerked when he was a federal appeals court judge.
But the White House, which has stressed the importance of racial and professional diversity in high-profile positions, would prefer a more diverse candidate, according to several former SG’s office attorneys.
The job was offered to California Supreme Court Justice Leondra Kruger twice, the National Law Journal reported earlier this year. Kruger, a Black woman and former top deputy in the SG’s office, is considered a leading contender to replace Justice Stephen Breyer.
The White House has also been pressed to fill high profile job — including those for the federal bench — with experience outside of the traditional pipelines. In relation to legal positions, that includes attorneys who have experience representing criminal defendants, as opposed to prosecutors who have traditionally dominated these jobs.
The time to name an official nominee could soon run up against the clock: Actions taken by the acting SG will have “no force or effect” unless there’s a nomination pending by November under a 1998 law meant to avoid end-runs around the Senate’s advise and consent role.
The Justice Department referred Bloomberg Law to the White House, which declined to comment for the story.
The delay in naming a nominee to fill the position appears to have worked in Prelogar’s favor, giving her more time to show she has the chops to do the job.
Prelogar would be only the second Senate-confirmed woman to serve as solicitor general. She clerked for the first one, Elena Kagan, after she left the job to join the Supreme Court. Prelogar also clerked for Justice Ruth Bader Ginsburg.
She’s gotten high marks for the two oral arguments she did this year as well as her earlier work as an assistant to the solicitor general from 2014 to 2017. She’s probably “one of the most talented assistants to come out of the office in twenty years,” one SG’s office alumnus said.
The administration “would be crazy” if they weren’t considering Prelogar for the SG position, or even a spot on the D.C. Circuit, said the former SG’s office attorney.
But Prelogar has less senior federal government experience than prior solicitors general who served in key positions at the White House, DOJ, or on the federal bench.
Kagan, who served as Obama’s solicitor general from 2009 to 2010, had previously served as dean of Harvard Law School and held senior roles in the Clinton White House.
Civil rights attorney Drew Days, Clinton’s solicitor general from 1993 to 1996, was the first Black person to lead the DOJ’s Civil Rights Division as associate attorney general.
And Ken Starr, who served under President George H.W. Bush, resigned his seat on the D.C. Circuit — often considered the second most important U.S. court — to head the SG’s office.
The SG’s office has faced criticism for its lack of gender diversity and is seen as a driver of the imbalance between male and female attorneys who argue at the nation’s highest court. Female attorneys took the lectern in 18% of the court’s cases last term. The SG’s office put forward 61 men at argument in 58 cases, compared with 10 women.
The office, which appears in approximately two-thirds of all Supreme Court oral arguments, has struggled to fill its ranks with diverse attorneys. As of May 2021, the office was staffed with 15 men and eight women, including Prelogar. The office has since lost at least one female attorney, Morgan Ratner, who recently left for Sullivan & Cromwell.
The White House, however, is putting a premium on racial and professional diversity outside of traditional, elite pipelines — something the administration has stressed when filling other top spots, including judgeships, several former SG’s office attorneys said.
The numbers of attorneys of color in the SG’s Office are even more lopsided than those for women, with a nearly 5:1 ratio of white versus racially diverse candidates.
More than half of the attorneys in the office come from elite law firms steeped in the tiny world of Supreme Court litigation, places like Gibson Dunn, Hogan Lovells, and Kirkland & Ellis. Prelogar, who previously worked at Hogan, came to the DOJ after a brief stint in Cooley’s Washington office.
Most SG attorneys previously clerked at the Supreme Court, including 12 who served in the chambers of just two justices, Chief Justice John Roberts and the late-Justice Antonin Scalia.
And nearly the same number — including Prelogar — graduated from either Harvard or Yale law schools.
The timeline to name a permanent figure for the job isn’t infinite, however.
Under the Vacancies Reform Act, the White House has only until mid-November to name a nominee before the acting SG can no longer serve in the role. Until that time, Prelogar and her four deputy solicitors general — career positions within the office that often straddle multiple administrations — will have to fill in the gaps.
Because of the Supreme Court’s workload, which centers around nine-month terms that begin each October, the office doesn’t have the luxury of putting off important policy decisions. But, said one of the ex-SG’s office attorneys, “the general ethos of the office is just that it pushes ahead.”