George Conway for Solicitor General?

December 30th, 2016

CNN and Bloomberg have reported that George T. Conway III (Kelly Anne’s husband) is on the shortlist for Solicitor General. Conway may be less familiar to close followers of the Court than other plausible names, as he is not a regular litigant before the Supreme Court. He argued one case, Morrison v. National Australia Bank (2010), which he won 8-0 (Sotomayor recused). That is one more case than Elena Kagan ever argued when confirmed as Solicitor General.

While at Yale Law School, Conway authored a note in the Yale Law Journal titled The Consolidation of Multistate Litigation in State Courts, (96 Yale L.J. 1099 (1987). The piece argues that Multi-District Litigation Panels (MDLs) should be able to remove cases from, and transfer cases to state court. Here is the introduction:

In recent years, multistate litigation1 has grown spectacularly in both cost and complexity. In particular, the expense of mass tort litigation, which commonly involves dozens of closely related lawsuits brought by citizens of many states, has reached staggering levels.2 The cost of litigating these claims often exceeds the sums that are ultimately paid to plaintiffs.3 Inefficiencies and costs associated with such multistate, multiparty litigation have inspired proposals for legislative and judicial reforms ranging from suggested changes in the substantive law4 to calls for more extensive use of joinder or consolidation devices.5
*1100 One product of reform that has proven particularly successful is the Judicial Panel on Multidistrict Litigation. Empowered by 28 U.S.C. § 1407 to transfer related civil actions filed in federal courts to a single district for consolidated proceedings,6 the Judicial Panel has used its authority both to conserve federal judicial resources and to reduce the danger of unfairly inconsistent adjudication in related multistate, multiparty cases. The ability of the Judicial Panel to foster efficiency and fairness in multistate, multiparty litigation remains limited, however, because the Panel currently lacks the power to remove cases from, and to transfer cases to, state courts. To remove this limitation, this Note proposes that Congress confer upon the Panel discretionary authority to direct litigation to and from state courts. The Note suggests factors that the Panel should consider before ordering consolidation in state courts, and argues that a necessary factor should be a likelihood that, after transfer, the substantive law of the transferee jurisdiction will govern much of the litigation. The Note concludes that a grant to the Panel of power over litigation in state courts would be constitutionally permissible.

The piece was cited in 1996 Judge Kozinski dissent that concerned MDL panels.

While the federal courts have treated Pfizer as dispositive, commentators have been far more skeptical. With remarkable unanimity, they have questioned whether, and under what circumstances, district judges to whom cases are entrusted for purposes of discovery may hold on to them for trial. . . . George T. Conway III, Note, The Consolidation of Multistate Litigation in State Courts, 96 Yale L.J. 1099, 1102–03 (1987) ( “[C]onsolidation for trial almost certainly defies both the letter of section 1407 and the intent of its drafters.” (footnotes omitted));

For what it’s worth, Justice Souter wrote an opinion unanimously reversing the Ninth Circuit.

Conway’s note was cited in 2016 in the most recent issues of Causes of Action 2d, Newberg on Class Actions, the Guide to Multistate Litigation, and the Annotated Manual for Complex Litigation, as well as a dozens of law review articles. After law school, he clerked for Judge Ralph K. Winter, who was appointed to the Second Circuit in 1981.

Following his clerkship, he joined Wachtell in 1988, made partner in 1994, and has been working there since.

Perhaps most attention will focus on his role in the Paula Jones case.

The Daily Beast had this report.

Things were moving fast for Jones, and it wasn’t always clear just who was in control of her case. In 1997, Jones was being represented by Gilbert Davis and Joseph Cammarata—two moderate Republicans who suggested that Jones accept a settlement offer of $700,000. For her part, Jones later said, “Oh, I instructed them many times to try and get the case settled…”
But there were other lawyers steering the ship from behind the scenes, a group of young conservatives who referred to themselves as Elves (as in the muscle and magic that runs Santa’s workshop). These elves included George Conway—husband to Kellyanne Conway, Trump’s third and current campaign manager who has defended Trump’s trotting out of Jones and the other women, telling Anderson Cooper, “I believe that voters should know who Hillary Clinton is.” George Conway wrote the Supreme Court brief that allowed Jones’s case to continue and leaked to Matt Drudge details of a sealed affidavit that would later be used to discredit Jones—one in which she described a “distinguishing characteristic” of the president’s penis, specifically a bend, a condition that doctors who examined Clinton disputed.

Mother Jones also explained his role in more detail:

Jones’ Supreme Court victory was due in part to the work of George Conway III, a Republican lawyer who is married to Trump’s campaign manager, Kellyanne Conway. When Jones’ case first became public in May 1994, Conway was a 30-something lawyer at the law firm Wachtell, Lipton, Rosen & Katz and a member of the Federalist Society, a conservative legal group. Conway penned an op-ed in the Los Angeles Times arguing that Clinton was relying on dubious legal arguments. “In a case involving his private conduct, a President should be treated like any private citizen,” he wrote. “The rule of law requires no more—and no less.”

The op-ed brought Conway to the attention of Jones’ lawyers, Gilbert Davis and Joseph Cammarata. (Cammarata now represents seven women accusing Bill Cosby of sexual assault and other charges.) Subsequently, Conway spent several years quietly working pro-bono with Jones’ legal team and a group of other conservative lawyers. This crew ultimately exposed Clinton’s affair with Monica Lewinsky and sparked impeachment proceedings against the president.

In 1996, the 8th Circuit Court of Appeals ruled that the case should move forward, saying that it could find no “case in which any public official ever has been granted any immunity from suit for his unofficial acts.” Clinton appealed the decision, asking the Supreme Court to delay the trial until after he left office. Conway wrote the Supreme Court brief for Jones. In a unanimous decision written by liberal Justice John Paul Stevens, the court agreed with Conway, and the Jones case proceeded. Clinton was subsequently forced to submit to hours of depositions in the case—a first for a sitting president. Jones ultimately settled with Clinton for $850,000.

As an aside, he may be the first Solicitor General short-lister ever portrayed on SNL. Flash back to this hilarious sketch where on her day off, Kelly Anne gets a kiss from her husband, serves her family waffles, and takes a bath.

Jake Tapper was not impressed.

Update: George and Kelly Anne used to contribute to an NRO Blog called “Reconcilable Differences: Two Conways, Two Takes.”

In hindsight, this post from January 2007 is almost too surreal to believe.