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Transition time is a particularly ticklish period at the solicitor general’s office. In one sense, it is a place where it doesn’t — or shouldn’t — matter who is president. The solicitor general, as one insider puts it, is “the paradigmatic nonpolitical person” whose reputation at the Supreme Court depends in large measure on being seen as unaffected by shifting political tides. By some estimates, the government’s position in more than 95 percent of the cases that the solicitor general handles reflect deeply entrenched government interests that don’t change when the presidency changes. “The Court doesn’t like it when the government changes its position in a case. It never goes unnoticed,” says one top official. But in another way, the installation of a new president makes all the difference in the world. The solicitor general can be a key official in advancing the agenda of a new president, an agenda that is affected by those remaining 5 percent of cases where the new president’s position might be substantially different from the last one’s. Add to this tension a large measure of uncertainty about Solicitor General Seth Waxman’s future and about who might replace him, and you can see why one lawyer there said recently, “We’re glad we’re busy. It gives us less time to wonder what will happen, because nobody knows.” Speculation about who will be named to the office by President-elect George W. Bush tends to focus on four names, all with considerable experience in the Justice Departments and SG’s offices of Presidents Ronald Reagan or George Bush, or both. The group includes three leading Supreme Court advocates who would be taking huge pay cuts to take the job: Theodore Olson of Gibson, Dunn & Crutcher; John Roberts Jr. of Hogan & Hartson; and Maureen Mahoney of Latham & Watkins. The fourth name mentioned is that of University of Utah law professor Michael McConnell, whose strong views in favor of greater accommodation of religion in public life might make him appealing to some, too hot to others. Some sources close to the transition say Mahoney, who would be the first female solicitor general in history, is a strong contender. Other speculation has it that Olson, who represented Bush at both oral arguments in Bush v. Gore, could fade as a possible nominee if the Bush team has concerns about residual feeling of political taint surrounding the Supreme Court’s handling of the election litigation. David Leitch, a Hogan & Hartson partner who is scrutinizing the solicitor general’s office for the Bush transition team, declined to speculate about possible names. “All the names I know are the names I read in the paper,” Leitch says with a laugh. His efforts have been directed at fact gathering about the needs and practices of the office — “reporting what’s going on,” he says. All that is certain so far is that Waxman, like other presidential appointees, has submitted his resignation as of noon on Jan. 20, when Bush will be sworn in. Waxman declines to talk about what will happen after that, but friends say that is partly because he does not know. Waxman is said to be adamant in believing it is inappropriate to do any job-hunting while on the government payroll, so it is likely he won’t have a specific destination when he leaves. His old firm, Miller, Cassidy, Larroca & Lewin, is in the process of being absorbed by Baker Botts, founded by the great-grandfather of Republican legal heavyweight James Baker III, a senior partner at the firm. It might not be the place that Waxman wants to land. It is even possible, although not viewed as likely, that Waxman will stay on as solicitor general for a while, honoring the Supreme Court’s desire for continuity in that office. In an institution that heeds precedent, there is a fairly recent one for that proposition. The last time the presidency went from Democratic to Republican hands — Jimmy Carter to Ronald Reagan in January 198 — Solicitor General Wade McCree stayed on until the end of the Court term, several months into the Reagan presidency. Folklore has it that Chief Justice Warren Burger, who was close to McCree, personally asked Reagan to keep McCree on. After a brief period when top career deputy Lawrence Wallace was acting solicitor general, Rex Lee was installed in August 1981. This option may hold some appeal for the Bush administration if, in the wake of Bush v. Gore, it does not want to seem too hasty in asserting its political will before the Supreme Court. But there is a precedent for Waxman leaving on Jan. 20 as well, reflecting the institutional tension that the solicitor general always faces. Bush Solicitor General Kenneth Starr and his political deputy John Roberts Jr. left office Jan. 20, 1993, when Bill Clinton was sworn in, leaving the office in the “acting” hands of deputy Bill Bryson until Drew Days III arrived in May. By that time, Days recalls, the SG’s work for that term was winding down and “I had a pretty clean slate for the fall term.” Days, now a Yale Law School professor, recalls there were a couple of civil rights and voting rights cases in which the new Clinton team took positions before the Court that were different from Bush’s, “but they were very few and far between.” He adds, “The vast majority of cases don’t involve hot-button issues.” Days says his transition was fairly unremarkable in personnel terms, as well. “I brought in three people,” he says — political deputy Paul Bender and two administrative assistants. “The rest are career people, who put in much more than an honest day’s work.” Days also recalls that even though Starr had already left, “he was very helpful to me” during the transition. “We met on several occasions to discuss how to organize the office and things like that.” Some longtime veterans remember the transition as being chillier than that, with existing staff refusing to share files on some pending cases with incoming officials. Lawyers in the SG’s office today say they are committed to helping the new boss get up to speed quickly on pending work. “We won’t play petty little games,” says one top official. Likewise, these officials say they won’t put off the writing of tough briefs until after Jan. 20, or hurry up their filings to trump a Bush position with a Clinton one. “That office is so driven by deadlines, the notion of filing something before it’s due, or delaying something until after it’s due, doesn’t work,” says Roberts, who was the political deputy under Starr when the elder Bush left office. The only cases without deadlines attached are those in which the Supreme Court has invited the solicitor general to state his views. Roberts is actually handling one of those, a significant antitrust case called CSU v. Xerox Corp., No. 00-62. The Court on Oct. 10 asked for the solicitor general’s views; nothing has yet been filed. Roberts, who represents CSU, says he does not know whether it might be one of those cases in which a Bush SG would take a different stance from Waxman. At issue in the case is whether Xerox’s refusal to sell patented parts and copyrighted manuals to certain customers violates antitrust laws. Another case in this category is Yarnell v. Cuffley, No. 00-289. The issue is whether a state can prevent the Ku Klux Klan from participating in its adopt-a-highway program without running afoul of the First Amendment. On Oct. 30, the Court asked the solicitor general for his views. Waxman has not yet responded. Charles Rothfeld of Mayer, Brown & Platt, who represents the state in the litigation, notes that the Clinton administration sided with him when the case was before the 8th U.S. Circuit Court of Appeals. And he notes that there are “strong federalism arguments” that helped prompt 28 states to file an amicus brief supporting the right of states to screen out organizations that want to participate in litter-removal road programs. Rothfeld does not presume to predict whether a Bush solicitor general would adopt a different view. But he notes that the state with the highway program at issue before the Court is Missouri — home state of Attorney General-designate John Ashcroft. “He probably knows about it already,” says Rothfeld. CHIEF CONCERNS Chief Justice William Rehnquist’s comments on the recent litigation involving the presidential election were not the only surprising comments in his year-end report. Several commentators expressed surprise at Rehnquist’s statement that the 2000 presidential election had involved the Florida Supreme Court and the federal courts “in a way that one hopes will seldom, if ever, be necessary in the future.” But the rest of his annual report, spanning 19 pages, contained other noteworthy items. One was a lengthy review of the spotty history of judicial pay raises, including a discussion of the Ethics Reform Act of 1989, which called for automatic cost-of-living increases for congressional and executive branch employees but not for the judicial branch. Since 1993, however, Rehnquist noted that judges have gotten only three raises. “These small and infrequent increases have once again allowed federal judicial salaries to erode,” he wrote. Remarkably similar arguments are made by federal judges in a case before the U.S. Court of Appeals for the Federal Circuit that could find its way to the Supreme Court, Spencer Williams v. United States. Williams and other judges claim that the sparse raises violate the Constitution’s compensation clause. The main brief in the case quotes from similar past statements by Rehnquist, so the comments in Rehnquist’s most recent report are not new. But with the case pending before the Federal Circuit, Rehnquist’s comments are unusually specific and unexpected. The chief justice also made passing reference to the controversy over efforts last year in Congress to repeal the ban on honoraria for federal judges. “This move was met with an outcry against what some feared would create the appearance of impropriety, even though any honoraria would be governed by the strict standards of the Code of Conduct for United States judges,” Rehnquist said. “Yet many of those who condemned any effort to repeal the honoraria ban recognized the genuine need to increase salaries for the federal judiciary.” Rehnquist also weighed in on pending legislation before the last Congress that would prohibit federal judges from attending or receiving “anything of value” in connection with certain kinds of seminars. It was introduced after a private report suggested that some federal judges have attended seminars funded by organizations that have a stake in cases before the judges. The legislation, according to Rehnquist, “has most of the elements commonly associated with government censorship. Such a proposal seems quite out of place in this country, with its tradition of freedom of speech and of the press.” Rehnquist’s final words struck a more conciliatory note. “I offer my best wishes to President-elect Bush and Vice President-elect Cheney and to members of the 107th Congress, just as I extend my best wishes to President Clinton and Vice President Gore and to those legislators who have concluded their elective service. And I extend to all my wish for a happy new year.” Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times . His e-mail address is [email protected]

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