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Few modern-day U.S. solicitors general, it’s widely agreed, have matched the energy, wit and mastery of his subject that Seth Waxman brought to oral arguments. And it was obvious to most that Waxman, even in his most uphill arguments, savored every moment. A graduate of Yale Law School, he was appointed solicitor general by President Clinton in 1997 and served until Jan. 20. He will join Washington, D.C.’s Wilmer, Cutler & Pickering this fall. He spoke with The National Law Journal‘s Supreme Court correspondent, Marcia Coyle. His remarks have been edited for space. Q: How is the office managed? How many lawyers? And is work divided among them by areas of expertise or by specialties? A: There is, of course, one solicitor general, who is the consummate generalist. In recent years, there have been four deputies, each of whom is responsible for certain areas of the law and agencies. The backbone of the office are the assistants, of whom there are generally 14 or 15. They are quasi-generalists, in the sense that they do not have formal substantive assignments but do, in fact, sometimes develop areas of special expertise or interest. Q: How did you decide which Supreme Court cases that you personally would argue? A: I generally argued one case per sitting. I tried to pick the most consequential cases, often those in which we might expect to have a particularly difficult time in court. Q: How do you prepare for oral arguments? A: I try first to reduce to a few sentences the absolute kernel of my case. Even after writing the brief, this is often very difficult! Next, I try to identify all of the many questions that might reasonably be asked, and I formulate and test-drive the most concise answers I can think of. The goal, rarely achieved, is never to be surprised, either by a question or by the implications of one’s answer. Q: In strategizing about a Supreme Court argument, do you ever gear arguments toward a particular justice? A: Absolutely never. The interest of the United States in litigation is less to win than to see that justice is done. It is never worth sacrificing the latter to achieve the former. In addition, I would think that tailoring answers to particular justices would confuse and threaten the very integrity of the argument I was making. Q: What do you think the Rehnquist Court’s legacy will be? A: I don’t feel qualified to say. Certainly, during my tenure, the Court has been exceptionally stable, well-run and collegial. I think the chief justice gets tremendous credit for those qualities in the Court. In terms of substantive doctrine, the Court’s decisions in certain areas — particularly federalism, separation of powers and takings — reflect readily identifiable trends. But whether these shifts will constitute a “legacy” is for others — and time — to tell. Q: Is this an “imperial” Court as some observers have said? A: I honestly don’t know what that term means. The constitutional structural history of American government is defined by periodic ebbs and flows in the relative powers of the three branches of government. Today, the Supreme Court is manifestly ascendant. Record numbers of congressional enactments have been struck down under the authority of Marbury v. Madison. At the same time, the Court has also unmistakably signaled a marked decline in the degree of deference it will accord the interpretations and judgments of executive and administrative agencies. These trends are plain, and they seem emphatic to some. To my mind, viewed in the sweep of constitutional history, they are noteworthy but certainly not alarming. Q: What did you think of the Court’s involvement in the Florida presidential election dispute? A: I made the difficult decision not to participate as an amicus curiae in either of the cases. Although I believed, and continue to believe, that there were important things the United States could have said, I felt that there was no realistic possibility that anything the United States submitted would not be misconstrued as influenced by partisan concerns. The same principle that counseled me to remain out of the litigation — the medical maxim “first, do no harm” — has led me to maintain my silence about the case.

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