Miguel Estrada of Gibson Dunn & Crutcher. HANDOUT. ()
In the ongoing drama over who will be the next U.S. solicitor general, Gibson, Dunn & Crutcher partner Miguel Estrada is the latest in a series of lawyers who have seemed on the verge of grabbing the brass ring.
Estrada, 55, has argued 22 cases before the high court both in private practice and in his five years as an assistant to the solicitor general in the early 1990s. He is scheduled to argue again on March 1 in Coventry Health Care of Missouri v. Nevils, a case involving health benefits for federal employees.
At a White House briefing February 23, press secretary Sean Spicer was asked specifically if Estrada was being vetted for the SG position so he could be in place when or if the controversial “travel ban” case arrived at the high court. “We don’t comment on personnel decisions until they’re made, until they’re finalized,” Spicer replied.
Other rumored nominees, including George Conway III of Wachtell, Lipton, Rosen & Katz, and Charles Cooper of Cooper & Kirk, have surged and then faded in the protracted guessing game. Kannon Shanmugam of Williams & Connolly and Christopher Landau of Kirkland & Ellis have also been mentioned prominently for the position.
All may still be in the running except for Cooper, who publicly withdrew from consideration in early February, citing the treatment his friend Jeff Sessions got from senators during his confirmation hearing as attorney general. “I am unwilling to subject myself, my family, and my friends to such a process,” Cooper said.
As a result of the uncertainty, the solicitor general’s office may be without a nominated head for an unusually long—though not unprecedented—time for a new administration. Eight years ago, President Barack Obama nominated Elena Kagan for the post in January and she was confirmed in March. Sixteen years ago, President George W. Bush’s first solicitor general Theodore Olson was nominated in February and confirmed in June. Former Jones Day partner Noel Francisco has been acting SG since January 23.
Estrada has had his own difficult experience with the U.S. Senate when it comes to confirmation.
President George W. Bush nominated Estrada for a seat on the U.S. Court of Appeals for the D.C. Circuit in 2001. Senate Democrats opposed him, in part because he was on Bush’s legal team in the litigation that followed the 2000 election. Some were also concerned that the conservative Estrada was being groomed for a Supreme Court seat.
Estrada’s confirmation hearing was delayed, and then he became the target of the first filibuster against a circuit court nominee. He withdrew his name from consideration in September 2003. Estrada returned to Gibson, where he had worked after his first stint at the solicitor general’s office.
In private practice, he has won significant victories in major business cases in the Supreme Court and elsewhere. Known for an aggressive argument style, Estrada argued and won: National Labor Relations Board v. Noel Canning, a 2014 separation-of-powers case; the 2013 antitrust case Comcast Corp. v. Behrend; and the 2010 “honest services” fraud case Black v. United States.
A native of Honduras, Estrada would be the first Hispanic in the position of solicitor general. But the former clerk to Justice Anthony Kennedy has objected in the past to being categorized by his national origin.
In 1998, when this reporter researched the dearth of minority law clerks at the high court for USA TODAY, Estrada angrily refused to comment as one of only four Hispanic law clerks ever hired by the justices then sitting.
“If there was some reason for underrepresentation, it would be something to look into,” Estrada said at the time. “But I don’t have any reason to think it’s anything other than a reflection of trends in society.”