The Solicitor General: The Politics of Law

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In this book, Rebecca Mae Salokar studies the Office of the Solicitor General of the United States from 1959 through 1986. A frequently overlooked institution of American politics, this office is responsible for all litigation before the U.S. Supreme Court on behalf of the executive branch. But the solicitor general is also a well-respected advisor to the justices and a gatekeeper, controlling a large portion of the litigation that reaches the Court's docket. The author shows that today, with the increased ...
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Overview

In this book, Rebecca Mae Salokar studies the Office of the Solicitor General of the United States from 1959 through 1986. A frequently overlooked institution of American politics, this office is responsible for all litigation before the U.S. Supreme Court on behalf of the executive branch. But the solicitor general is also a well-respected advisor to the justices and a gatekeeper, controlling a large portion of the litigation that reaches the Court's docket. The author shows that today, with the increased politicization of the Justice Department, the work of the nation's lawyer is an integral component of executive policy-making. Paying particular attention to the selection of solicitors general and the political and legal environment in which they functioned, Salokar analyzes all Supreme Court cases in which the government was a participant from 1959 to 1986. She examines the work of the solicitor general in the roles of litigant or party to a case and amicus curiae or friend of the court. Her interviews with several former solicitors general and members of their staffs provide contextual examples to support the statistical analyses. Salokar's findings suggest that the solicitor general enjoys a large degree of functional independence from the Department of Justice and the executive branch but that the office does, in fact, act politically by pursuing the agenda of the executive branch in its case selection and argument formulation before the Supreme Court. This study demonstrates that the Office of the Solicitor General can and does shape policy questions for the United States. As the most frequent and successful litigant before the Supreme Court, the solicitor general plays a critical role in shaping the court's agenda. As a political actor, the solicitor general pursues the implementation of the president's policy agenda through litigation activity. While the relationship between the judicial and executive branches has been defined traditionally through th
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Editorial Reviews

Katy J. Harriger
Rebecca Mae Salokar's THE SOLICITOR GENERAL: THE POLITICS OF LAW fills an important gap in the literature on constitutional lawmaking. Her study considers the role of the solicitor general as "respected adviser" to the president and "gatekeeper" (p. 1) for the Supreme Court. As her subtitle implies, her research demonstrates the way in which executive branch politics influences the work of the solicitor general and of the Court. Prior to Salokar's work, the literature on the solicitor general consisted primarily of studies examining the use of amicus briefs and a controversial work by Lincoln Caplan entitled THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW (1987). Caplan's book garnered much publicity because of his thesis that the Reagan administration had politicized unduly the formerly independent office of solicitor general by lobbying the Court to overturn past precedent on issues like abortion and school prayer. Salokar's book lacks some of the richness of narrative that is found in Caplan's work, but she makes up for that with a more empirically sophisticated assessment of the office. Salokar considers the solicitor general as a "strategic political actor", examining "the conditions and cases in which solicitors general make decisions on behalf of their client, the government of the United States" (p. 7). She begins with a descriptive overview of the office, noting its historical development and the responsibilities of the office, and providing data on its litigation load during the period from 1959-1989. During this period the government was a party in 58.8% of all cases granted the opportunity for oral argument before the Court and in 48.5% of all cases decided on the merits. The solicitor general's success rate in petitions for certiorari was 69.78% compared to a 4.9% success rate for private petitioners. This remarkable success makes the solicitor general "the definitive Repeat Player" (pp. 30- 31). Salokar attributes this success to " a select staff, a tradition-bound process, and a political appointee who is sensitive to the institutional needs of both the administration he serves and the court in which he appears" (p. 32). Chapter 2 examines the process by which solicitors general are selected. Consideration of the selection process between 1959 and 1986 provides evidence to refute Caplan's assumptions about prior independence among these presidential appointees. The selection of a new solicitor general is based on the nominee's ideological compatibility with the president. Thus, Salokar concludes, this lawyer for the government "is no more independent than the secretary of transportation, the attorney general, or any other political appointee."(p. 34) The solicitors general appear independent because presidents pick people whom they can "allow to be independent" (p. 55). While Salokar provides ample evidence to refute Caplan's rather naive belief in the past "independence" of solicitors general, she has problems of her own in defining what she means by "politics" and "independence". There is politics and then there's "politics" one might say. Clearly, appointment by the president and service at the will of the president makes the solicitor general a "political" actor in the best sense of the word. But excessive partisanship that interferes with the traditional relationship between the solicitor general and the Court may be something altogether different. While Caplan clearly goes too far in ignoring past evidence of political influences, Salokar seems to overstate her case against independence. The "tradition-bound" process of decision making, the relationship with the Supreme Court, the occasional refusal to sign government briefs that the solicitor general disagrees with are all evidence of informal norms of independence that she acknowledges in later chapters. Perhaps "interdependence" is a better word to describe the result of the "bramblebush" of external relationships that Salokar describes in Page 55 follows: Chapter 3 as influencing the decisions of the solicitor general. Chapter 4 provides extensive analysis of the cases filed by the government between 1959 and 1986. Salokar constructed two data sets for this research. One is based on the ANNUAL REPORTS of the attorneys general from 1960-1985 and the other includes all cases in which the government participated (as a party or amicus) decided by the Supreme Court on the merits or with a written decision from 1959-1986. These data allow a far richer analysis of the solicitors general work than we have seen heretofore. In addition to considering the success of the office over time in cases where the government is the petitioner, the respondent, or acting as a friend of the court, Salokar provides a fascinating case study of individual rights cases. She finds that when the government is a respondent in these cases, it defends executive prerogatives regardless of the party in the White House. Partisan differences do show up in decisions to seek review and in the filing of amicus briefs. During the years of her study the more liberal court handed the government more defeats than are the norm in individual rights cases where it was the respondent. Her study does not measure the effects of the new, more conservative court but her findings suggest fertile ground for further research. Salokar concludes with a general discussion of "the balancing act" that the solicitor general must perform in the American political system. Here she more clearly recognizes that the relationship between the solicitor general and the Court is "established on mutual need and interdependence " (p. 179). She also argues that her research supports the earlier arguments of Robert Scigliano (THE SUPREME COURT AND THE PRESIDENCY, 1971) about the compatibility of the executive and judicial branches, and of Theodore Lowi 's work on the rise of the administrative state. "As the executive increasingly petitions the Court for review of its problems," she writes, "the judicial focus must necessarily shift to issues of governmental power and the interpretation of regulations rather than relationships between individuals." (p. 177). This closing discussion is interesting but would have been better placed at the start of the book and more effectively woven into the other chapters. As it is, it comes almost as an afterthought. Salokar's book provides much needed information about the process by which the solicitor general represents the interests of the executive branch before the Supreme Court. It is a timely and well researched book that should be of great interest to students of the federal legal process and executive politics.
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Product Details

  • ISBN-13: 9781566392600
  • Publisher: Temple University Press
  • Publication date: 9/28/1994
  • Edition description: Reprint
  • Pages: 325
  • Product dimensions: 6.02 (w) x 9.02 (h) x 0.71 (d)

Table of Contents

Acknowledgments
Introduction: The Government's Lawyer 1
1 An Overview of the Office of the Solicitor General of the United States 8
2 The Cream of the Crop: The Fifth Floor of Justice 33
3 Untangling the Bramblebush: External Demands and Influences 69
4 Vested Interests: The Government as a Party Before the Supreme Court 106
5 Friend of the Court: The Government as Amicus 134
6 The Dilemma of Serving Two Masters: Strategies for Individual Rights Cases 151
Conclusion: The Balancing Act: The Solicitor General and American Politics 174
App. A. Solicitors General of the United States 181
App. B. Organizational Charts 183
App. C. Data Collection 187
Notes 191
Bibliography 219
Index 231
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