Kerr on Potential Picks for Solicitor General

At the Volokh Conspiracy, Orin Kerr offers interesting insights about talked-about candidates for Obama’s Solicitor General: Dean Elena Kagan and Kathleen Sullivan. He writes: “I don’t know either Kagan or Sullivan well, but from what I know I would think either would make an excellent Solicitor General. Sullivan has more litigation experience: The article notes that Sullivan has four prior Supreme Court arguments, while Kagan has had none. Indeed, if the Westlaw ALLFEDS database is correct, Kagan has never had her name on a Supreme Court merits brief, and the last federal appellate brief with her name on it was in 1990 when she was an associate at Williams & Connolly.”

Kerr goes on to explain that “this relative lack of practical experience is not so unusual when an Administration picks an academic as SG. Very few law professors have notable litigation experience, and those that do usually have most of their experience from the period before they became academics. When Harvard Law School Professor Charles Fried was picked in the Reagan Administration, for example, his first argument to any court ever was earlier in the year he became SG, when he was briefly a Deputy SG. And even when an Administration picks a practitioner, a lack of Supreme Court argument experience is not so uncommon: My recollection is that Seth Waxman had never argued before the Court when he was named SG in 1997. In any event, it will be very interesting to find out who Obama selects.” Indeed.

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