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Manuel “Manny” Medeiros will be busy this U.S. Supreme Court term. Not Ted Olson busy, but still. On the job less than a year, California’s first solicitor general will oversee seven arguments this year (maybe six), a number that doesn’t put him in the same sphere as U.S. Solicitor General Theodore Olson, but does give him a hand in close to 10 percent of this term’s Supreme Court decisions. Medeiros’ position as Attorney General Bill Lockyer’s point man is complex, evolving and fraught with challenges. He works without a staff, has to juggle the politics inherent in his position, faces suspicions from office hard-liners and has to decide how to establish credibility with the high court while looking over his shoulder at the Ninth Circuit U.S. Court of Appeals. Next month, he’s scheduled to personally argue his first case at the highest court. But his boss is pushing to drop the case less than a month before the justices are scheduled to hear it. Not exactly a credibility- building first step. Minesweepers have an easier time of it. The case, Medical Board of California v. Hason, is a potential blockbuster because the state’s position — that it has the right to deny a medical license to a clinically depressed applicant — opens the door to eliminating state liability under Title II of the Americans with Disabilities Act. Of course, paring back the ADA and enhancing state sovereignty are two of the conservative court majority’s pet projects, and Lockyer is loath to lend a helping hand. He doesn’t want to see states enjoy broad immunity under the ADA. But his client — the medical board — would obviously like to win. Medeiros had already softened the state’s position in the briefing, a move that led Senior Deputy AG Joel Davis to pull his name off the brief and forgo a chance to argue at the high court. Davis and others who worked on it apparently didn’t feel it was strong enough or adequately addressed the question posed by the Supreme Court in its grant of certiorari. “We tried to narrowly define the question for the U.S. Supreme Court,” Medeiros explained. “We believe the Supreme Court can resolve this case by answering just this question — can Congress properly abrogate state sovereign immunity only with respect to licensing activity?” Even the narrowed argument may be too risky for Lockyer’s taste, which is why he asked the medical board to give him the OK to withdraw the state from the case completely. The board was scheduled to vote over the weekend on the request. A withdrawal would almost certainly harm the state’s credibility, and it’s not even clear that the Supreme Court will let the state out of the case. Justice Stephen Breyer has said, for example, that once a case is on the docket, the court does not want it to go away. “I’ve been a lawyer a long time, and I’ve never seen anything like this,” said Erwin Chemerinsky, Medeiros’ would-be opponent in Hason. The University of Southern California law professor represents Michael Hason, who was denied a medical license by the board because of his clinical depression. “We, of course, abide by our representative duties no matter what they decide,” said AG spokesman Nathan Barankin prior to Friday night’s vote by the medical board. “The issue as it’s been framed is much broader than what this state feels comfortable with.” Eight other states have leaped into the void with an amicus brief urging the U.S. Supreme Court to take that broad approach, and the broader issue is the one the justices told California to brief. ‘A FINE LINE’ To some of the hard-liners in the office, the maneuvering in Hason affirmed fears that Medeiros is in place to watch Lockyer’s political hindquarters. It’s a sentiment that Medeiros doesn’t exactly disagree with. In addition to drawing up winning arguments, he says his role is also to consider policy. “We have a fine line that we want to tread,” Medeiros said, “both as a public lawyer and then as the client’s lawyer.” He said he’s heard that some were apprehensive about his new role in the office, but thinks that came from fears that he would take cases away from people. That, he said, is not the case. Unlike the U.S. solicitor general, who takes full command of the government’s docket, the AG’s office gives lawyers a chance to argue their cases all the way up the appellate line, and that will not change. Office politics is only one of Medeiros’ challenges. Another is deciding what tone to take in cert petitions. Traditionally, the AG has been aggressive, even dismissive, in its treatment of the Ninth Circuit — perhaps, with good reason. The Ninth Circuit is the most overturned court in the country, consistently proving that it neither cares nor knows how to avoid controversy. This year’s Supreme Court term began with the high court handing down three summary reversals of the Ninth Circuit on the same day, an unheard of rebuke. “I think it’s very, very clear that the state is gunning for the Ninth Circuit,” said Thomas Goldstein of Goldstein & Howe, one of the country’s closest observers of Supreme Court practice. “I’ve talked to other people about this. It’s a recurring theme.” If all the AG’s office handled were criminal cases, beating up on the Ninth Circuit might make perfect sense. But on the civil side — in cases like Hason, on issues like civil rights — Lockyer and the Ninth Circuit are often aligned. So a more moderate tone might be prudent. “Solicitors general really do enhance the credibility of the state,” Goldstein said. “If they mute the tone [of the briefs] then it’s the right thing to do.” But the rank and file of the criminal division — who can barely contain their contempt for the Ninth Circuit — see things differently. “You don’t have to have brass knuckles, but bare knuckles are probably a good thing with these guys,” said one longtime lawyer in the AG’s office. “When the [solicitor general's] office was created, there was a certain amount of apprehension about whether it would be used as a political-correctness filter,” the lawyer said. “There’s a good deal of concern about pulling our punches in asserting technical defenses such as immunity and procedural bars.” Two of the Supreme Court’s opening-day summary reversals were criminal cases from California, and both reminded the Ninth Circuit to leave state court habeas corpus decisions alone unless they involve an unreasonable application of clearly established federal law. In other words, no second-guessing the close calls. Nevertheless, the court has continued to anger state deputy attorneys general and probably the U.S. Supreme Court by granting habeas petitions in just those kinds of situations, as it did last week in overturning a second-degree murder conviction. The death penalty will continue to be the office’s major battlefield, but it’s not one the solicitor general has trained for. Hiscriminal experience totals two years in the state public defender’s office more than 20 years ago (he was in charge of governmental affairs at the AG’s office for many years before becoming solicitor general). For now, anyway, Medeiros doesn’t signal any shift in strategy or tone. The office will continue attacking the Ninth Circuit’s habeas grants, he says. “We are taking those up,” he said. But his criticisms are mild compared to what you’ll hear from some in the office. The Ninth Circuit, he says, sometimes “wants to push the envelope in construing habeas petitions,” and can be “more extreme” than other circuits. Whether Medeiros can navigate the politics and build credibility at the same time remains to be seen. Right now, he is waiting to see if he’ll be arguing Hason. And he’s looking around for resources. “It would be nice to get some paralegal help,” he said, “and at some point even some lawyers.”

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