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There is a new road to professional advancement — and face time at the U.S. Supreme Court — for former high court law clerks. Instead of heading to D.C. law firms with appellate specialties, more and more highly prized former clerks are heading out of town to state governments to take lower-paying positions as state solicitors general. R. Ted Cruz, a one-time law clerk to Chief Justice William Rehnquist with experience in the current Bush Justice Department and the Federal Trade Commission, was the latest to beat a path away from the District to build his appellate skills. In January Cruz became the solicitor general of Texas, a position held a few years earlier by Gregory Coleman, a former Clarence Thomas clerk who now heads the Supreme Court and appellate practice for New York’s Weil, Gotshal & Manges from its Austin office. “It was an opportunity to come home and have a wonderful appellate practice,” says Cruz, whose hometown is Houston. “Nationally, the position of SG has expanded dramatically. It’s a great attraction for young lawyers who want to get out there and actually argue cases.” Cruz will be handling as many as three Supreme Court cases in the upcoming term, and arguing one or more. While notable in itself, the law clerk trend is a telling sign of another important development in the appellate landscape: the increasing number, allure and prestige of state solicitor generalships. Private law firms and the U.S. solicitor general’s office are no longer viewed as the only springboards to top-notch appellate experiences. And the states, with increasing clout and legal savvy, are taking advantage of the new talent knocking on their doors. Fully 29 states now have their own SGs, up from eight only 15 years ago. California recently joined the list with its first SG, Manuel Medeiros. “Every year we add a few, it seems,” says Missouri’s SG, James Layton, author of a recent law review article on the rise of state SGs. States have long had appellate section chiefs who specialized in state and federal appeals, he notes. But by moving to the solicitor general title and model, states are trying to increase the professionalism and quality of the work. “It gives the attorney general a sort of a legal scholar on staff, typically someone who did not work in his or her campaign, someone who might think differently from the other lawyers,” Layton says. More and more often, that in-house “scholar” has Supreme Court experience under his or her belt. Ohio has had three former Supreme Court clerks in the SG position — including Jeffrey Sutton, now sitting on the 6th U.S. Circuit Court of Appeals. Both New York’s current solicitor general, Caitlin Halligan, and her predecessor, Preeta Bansal, clerked at the Supreme Court. Gary Feinerman in Illinois and Alabama’s Nate Forrester were clerks to Anthony Kennedy. Whether the trend has resulted in more wins for states at the Supreme Court is difficult to say. Thanks to the Rehnquist Court’s federalism juggernaut, states have been faring better in recent years — but they might have done so regardless of the quality of representation. Anecdotally, though, it appears that Supreme Court justices are pleased with the increase in the number of states with SGs. Justices from the late Warren Burger to Sandra Day O’Connor used to grouse in public about the poor quality of state advocacy, but those complaints have subsided. Watching a state argue its case before the Supreme Court used to be a painful experience, as often as not. State attorneys general don’t get where they are because of their appellate advocacy skills. But many used to argue before the Supreme Court anyway — often to burnish their r�sum�s on the road to running for governor. The problem was, some would try to charm the justices the same way they would woo a crowd at a campaign cookout: with empty rhetoric, folksy humor and a minimum of preparation. A North Dakota attorney general, for example, once tried to bolster an argument by joking about the tie he was wearing. That earned him a glowering look from Justice Kennedy, who asked, “Do you have any better reason?” When an Arkansas AG fumbled for an answer for an awkward few minutes and mentioned his fallback position, a justice interjected, “It’s time to fall back.” Such performances are still seen at the high court, but much more rarely. In a growing number of states, the attorney general can — and usually does — turn to the state solicitor general to argue before appeals courts. “The work is fabulous,” says New York’s Halligan, who clerked for Justice Stephen Breyer. “The docket of cases is absolutely as interesting as anything you can find anywhere, particularly if you’re not in D.C. You really can’t find this kind of variety.” Bansal also says that the increasing role of states in multistate litigation — ranging from the Microsoft Corp. to tobacco to the corporate responsibility issue — has led really bright lawyers to find perches in state AG offices. “There is a growing sense that states are very active law enforcers,” says Bansal, who is heading back east after a year of teaching at University of Nebraska College of Law. ‘REAL CLERKS’ NETWORK’ University of Kansas School of Law Dean Stephen McAllister, a former Thomas clerk who became Kansas’ first solicitor general in 1999, says, “There is a real clerks’ network here at the state level that never existed before. If you’re an addict for oral argument, it’s a great job to have.” Without hesitation, McAllister attributes the trend to Sutton’s tenure as Ohio’s solicitor general in the late 1990s: “He really took it up a notch for all the states. He set the standard.” With the approval of then-Ohio Attorney General Betty Montgomery, Sutton, a former clerk for Justice Lewis Powell Jr., aggressively pursued Supreme Court argument time — and got it, even arguing three cases in which Ohio was not a direct party. Until Sutton’s tenure, it was almost unheard of for the Court to grant argument time to a state amicus curiae. But that did not deter Sutton, most notably in the landmark Texas case City of Boerne v. Flores, in which Sutton argued before the Court that states did not need Congress to tell them how to protect religious liberties. In a criminal case, Hohn v. United States, the Court appointed Sutton to argue a position that the parties no longer disputed — and Hohn was from Nebraska. (Sutton declined to comment on his contribution to the rise of the state solicitor general.) Another key player, all agree, is Dan Schweitzer, Supreme Court counsel for the National Association of Attorneys General (NAAG), who heads its Supreme Court project. For the past 20 years, the project has worked to improve the quality of state advocacy before the high court, and Schweitzer sees the appointment of SGs as a “very dramatic development” that has helped the effort. “States realize that appellate practice is an area of special expertise, and they want greater consistency in positions and an improvement in the quality of the briefs and oral arguments,” says Schweitzer, who ran 23 moot courts for state advocates last term. “Attorneys general are looking to state solicitors for objective, high-quality advice.” The improvement is noticeable, says David Frederick, a partner at D.C.’s Kellogg, Huber, Hansen, Todd & Evans and the author of a book on Supreme Court advocacy. “NAAG has done a terrific job of organizing moot courts, and deserves a lot of credit for raising the level of advocacy by states.” The model Schweitzer and most SGs point to is that of the U.S. solicitor general, whose position of trust with the Supreme Court gives him a measure of independence — not always exercised — from the politically tinged strategies of the attorney general or the White House. State solicitors, Schweitzer acknowledges, “don’t necessarily have the same independence” that the federal SG enjoys. California SG Medeiros learned that truth on his way to what would have been his first oral argument at the Supreme Court last spring. After the Court granted review in California Medical Board v. Hason, disability rights groups pounded Gov. Gray Davis for the state’s position in the case, which was that states were immune from lawsuits under the Americans With Disabilities Act. The state took the rare step of withdrawing the case, and asking the justices to remove it from the docket. In various post-mortems, some questioned the role of the one-person solicitor general’s office. Peter Siggins, a top aide to Attorney General Bill Lockyer, came to Medeiros’ defense, stating in a memo, “The solicitor general program was not the source of any misstep or understanding.” Medeiros says that he was involved in decisions to get in the case and to get out, but adds, “It all could have happened without me.” He declines to say if his advice was followed or ignored at any step, but states his concept of the state solicitor general’s job: “I don’t view it as a political position, particularly. I try to provide sound legal advice.” It remains to be seen, says Missouri’s Layton, whether state SGs, usually prone to the whims of elected attorneys general, can ever achieve the same independence enjoyed by the federal solicitor general, a position created by a statute that requires its occupant to be “learned in the law.” One state SG lost his job, Layton says, when a newly elected attorney general announced that, based on his experience as a private attorney, “We don’t need an appellate specialist.” But most states are heading the other way, and Layton sees solicitors in many states beginning to earn their keep and building trust with the state and federal courts as well as with their bosses: “It’s much more than a name change. It’s a real change.”

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