Verrill on the Role of the Solicitor General, and Making/Not Making Arguments the Client Wants

October 21st, 2013

SCOTUSBlog has a great video series with General Don Verrilli. The first video asks a number of important questions. I encourage you to listen to the story of how he got his clerkship with J. Skelly Wright.

Later on, Verrilli was asked “to what extent is the Office the lawyer for other parts of the government, versus making decisions itself?” (around 9:10). Here is my (rough) transcript.

The role of the Solicitor General and of this office in carrying out the appellate litigation responsibilities of the United States is quite an interesting contrast from my time in private practice. In one sense it is like my time in private practice, we are the lawyer in the Solicitor General office and we have clients. Client could be HHS or NLRB or could individual officials. So we do have clients. But the relationship between the attorney and the client is pretty much the inverse of the relationship of the attorney and client in the private sector. In the private sector the attorney can give advice of how to litigate a case, what arguments to make, what arguments not to make, but at the end of the day, the client makes the judgment.

In this job, it’s pretty much the inverse. The client asks us to pursue an appeal or take a case for cert or ask us to make certain arguments. Ultimately it is up to this office, and ultimately it  up to me, to make the judgment of what case to ask what the Court  to review, get into with an amicus, arguments to make, and arguments we won’t make. We play an aggressive screening function in carrying out those responsibility. We have to think of the interests of the executive branch as a whole.  If one agency wants to take a case to the Supreme Court.

If they lost a significant principal of administrative law in a case that may matter to them a great deal. Part of the judgment we have to make, is this the right case to take to the supreme court in order to establish a principle of administrative law that will be of important to every agency and department in executive branch. If it is a case that doesn’t present the issue in the best possible light if the factual record is not favorable, if the way in which the issue shaped up is not perfectly clean, then part of our responsibility is to say no. It’ snot in the interests of the executive branch to take that case up. Even though you want to take the case up, we are not going to do it.

That is something we do with some frequency. We make a significant number of decisions not to pursue matters further, not to take issues before the court. Even in cases where we are already in front of the court, not to advance particular argument, even though you want to establish a principle of law, even though it matters, this is not the right time or place to do it.

In Unprecedented, and my new essay, Obamacare & Man at Yale, I discuss at great length, the decisions of how the Office of the Solicitor General decided what arguments to make, and what arguments to make in NFIB v. Sebelius.

The Solicitor General  considered those concerns, but ultimately decided to present the argument his “client” did not want to. Dealing with NFIB v. Sebelius in particular, the SG had to juggle the concerns of so many agencies with conflicting interests. The meetings were quite intense.

Everyone was on high alert. Whereas usually assistant general counsels of the various cabinet-level departments might attend strategy meetings with the Department of Justice, for this case the gen- eral counsel of each agency crowded each meeting along with all the other attorneys working the case.

Further, the Treasury Department fought tooth and nail not to waive the AIA requirement, for fear that would increase the number of tax suits against the government.

One lawyer for the challengers told me that it was “remarkable” that the government conceded that the Anti-Injunction Act did not apply. It was “pretty powerful” for the government to abandon the AIA issue, as the federal government had a strong “institutional in- terest in having it apply.” Indeed, internally many in the Treasury De- partment vigorously opposed this decision. Former commissioners of the Internal Revenue Service filed a brief with the D.C. Circuit arguing that the AIA should apply. The “government saying it does not apply, and you should reach the merits” now, was significant. The administration “wanted a decision sooner rather than later.” They simply did not want to wait.

Paul Smith, Verrilli’s former law partner, aptly summarized Verrilli:

 His former law firm partner Paul Smith told me that Verrilli is a “clear thinker” and praised his “unflappable” ability to unite different interests in pursuit of a common goal.