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Insights from the Office of the U.S. Solicitor General

By Kristy Demas
November 8, 2018

The fourth highest-ranked official at the U.S. Department of Justice (DOJ) carries a title most would be hard-pressed to name. Occasionally referred to as the 10th justice of the U.S. Supreme Court, the U.S. solicitor general (SG) is not well-known despite the weighty cases its office reviews. Ultimately, it is the SG who decides which cases should be heard by the Supreme Court. As for the SG's client, it is the U.S. government.

Michigan Law Professor Julian Davis Mortenson recently led a panel discussion with five former members of the SG's Office: Paul D. Clement, the 43rd solicitor general; Charles Fried, the 38th solicitor general; Gregory G. Garre, the 44th solicitor general; Ian Gershengorn, acting solicitor general from June 2016 to January 2017; and Nicole A. Saharsky, who was assistant to the solicitor general for 10 years.

Mortenson moderated the panel, Diversity of Thought and Respecting the Other Side of the Argument, noting that "from these extraordinarily talented speakers and alumni of the Solicitor General's Office, we might learn how to best approach difference on campus." First, though, he asked just what the SG does.

According to Saharsky, the solicitor general represents the federal government before the Supreme Court—determining its position in all cases—and handles appeals in the lower courts. "The SG is essentially doing the work of the executive branch but in litigation and appeals," she said.

Clement said many consider the SG to be the end of the road, as once a decision is made, the only recourse is appealing to the U.S. attorney general or the president. Clement shared that things went better when the DOJ talked to the White House rather than the reverse. "I might have said something like, 'I am happy to tell you why we are taking that position, and unless I hear differently that's what is going to happen.'"

The SG Office's credibility was never called into question, shared Gershengorn, who said it has a reputation for doing the right thing even if at odds with stakeholders.

Fried agreed. "The greatest criterion is to be a good professional, to tell the truth, to give an account of the facts which everyone can accept, to note the arguments on both sides fairly, and then to take the correct position."

The size of the SG’s office is inversely proportionate to the size of the job. "It's 20 lawyers—just a handful of people—who deal with two-thirds of the cases before the Supreme Court, and the smallness of it allows for collegiality," explained Garre. This was true even when members of the office had opposing views, leading Mortenson to ask how the University could best handle opposing viewpoints on campus.

"The SG's Office is much easier to run than a university because its whole mission is to make a recommendation to the Supreme Court," said Clement.

Because of that, Saharsky said, "I wouldn't want to be a University administrator."

Mortenson then asked how the University can respond when controversial figures—such as a Holocaust denier—want to speak on campus.

Saharsky felt that the SG's civil approach—not writing memos in bold capital letters and avoiding hyperbole—helped in divisive cases, while Fried said the answer depends on who invites the speaker. Is it a student group? If so, that's fine. Gershengorn suggested that because the University's mission is defined as inclusive, where students feel comfortable, it is appropriate for the University to state when a speaker or event does not reflect its views. However, it is not appropriate to act as a regulator as you can't deny free speech—as the University's Standard Practice Guide states.

Saharsky believes that more speech is better than limited speech, citing the Supreme Court's strong commitment to the First Amendment, but she agreed it can be hard when some views are well outside the mainstream, hurtful, and might lend the appearance of a speaker being given a forum.

The panel wound down with questions from students, including one asking how to proactively use the law as professionals to ensure that events like the riots in Charlottesville don't happen again. Saharsky suggested that students focus on individual ways they can help. In her case, she volunteers to help defend Deferred Action for Childhood Arrival cases. It might not change the world but affecting positive change for even just one person is still of value and a step in the right direction, she said.

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