L-R: Hon. Paul Clement, solicitor general of the United States from 2005 to 2008; Catholic University President John Garvey; and Hon. Seth Waxman, solicitor general of the United States from 1997 to 2001.
Law's Ultimate Practice
The solicitor general of the United States has been called the best legal job in America. Others have nicknamed the post the “10th Justice” of the Supreme Court. Two men who have held the job agree that there is nothing else like it.
“The Court at a Crossroads: A Conversation with Two Former Solicitors General” was the title of the Columbus School of Law’s 42nd Annual Pope John XXIII Lecture, held Oct. 12, 2010, in the law school’s packed-to-capacity auditorium.
The 90-minute panel featured the Hon. Paul D. Clement, solicitor general of the United States from 2005 to 2008, and the Hon. Seth Waxman, who held the job from 1997 to 2001. The broad-ranging discussion was moderated by John Garvey, president of The Catholic University of America and a noted Constitutional scholar in his own right.
The solicitor general represents the position of the United States government before the United States Supreme Court. By definition, the “SG” is at the forefront of most of the major legal, cultural and social issues of the day. Good friends and sometime legal allies, Waxman and Clement agreed that the job is endlessly fascinating, but that determining the government’s stance on a legal issue isn’t always as clear cut as it seems.
“The harder cases are those in which you can identify a government interest on both sides of a case,” noted Clement (above right), citing Title 7 civil rights litigation as an example. The SG spends more time mediating legal disputes between feuding government agencies than most people realize, he said.
President Garvey skillfully led the discussion through many different facets of the job, drawing out both men’s opinions on a variety of subjects. He wondered about the problems caused when an SG is elevated to the Supreme Court, as Justice Elena Kagan was earlier this year. Kagan has been obliged to recuse herself from 25 cases before the high court so far, because she advocated a point of view on those cases as solicitor general.
Some critics note that so many recusals could lead to a series of 4-4 deadlocked votes on important cases, an example of the court poorly serving the American people.
One suggested solution is to bring retired justices back to Supreme Court to sit on cases where a recusal leaves only eight judges.
Waxman (above right) found the idea interesting. “You have three perfectly capable retired Supreme Court justices who could come off the bench, to go back to the bench, so to speak,” he said.
The two men were also questioned about the high court’s controversial ruling in Citizens United v. Federal Election Commission, which lifted restrictions on political funding and speech by corporations.
“There are five justices who have a very firm view that cases like this trigger close First Amendment scrutiny,” observed Clement.
On another hot legal battle, Waxman predicted that the “zones of separation” rulings that apply to messaging at abortion clinics and polling places would prevail again in Phelps v. Snyder, a case argued in October 2010 that deals with obnoxious protests at military funerals.
Both Clement and Waxman enjoy robust appellate private practices today with two of Washington, D.C.’s major law firms. The speakers stayed for part of the post-discussion reception.