U.S. Supreme Court U.S. Supreme Court. Credit: Diego M. Radzinschi/ NLJ

The fierce political battle in Wisconsin over Republican measures that could weaken the power of the incoming Democratic governor has taken down an unexpected target: the state’s solicitor general.

The package of bills passed in advance of Democratic Gov.-elect Tony Evers taking office includes a provision that would abolish the position of solicitor general, who argues before state and federal courts, including the U.S. Supreme Court, and his office, which includes five other lawyers. Current Gov. Scott Walker has yet to sign the bills.

Misha Tseytlin

If he does, Wisconsin Solicitor General Misha Tseytlin, a former clerk to Justice Anthony Kennedy and former associate at Gibson, Dunn & Crutcher, may be the first and last solicitor general the state has had.

He might have been out of a job anyway with the election of a Democratic attorney general as boss, but legislation abolishing the position altogether has an undeniable finality. Tseytlin did not respond to a request for comment.

The bill also runs contrary to a decadeslong trend toward increasing the number of state solicitors general nationwide to improve the advocacy and professionalism of state litigators. Only 10 states now lack state solicitors. Wisconsin would be the 11th, and may be the first state to end the innovation by legislation. As with the other states that have no solicitor general, appellate lawyers in the state justice department would likely pick up the slack.

But why would the solicitor general’s office, created in 2015 by Republican Attorney General Brad Schimel, be a casualty of wide-ranging political conflict?

Strangely enough, the answer may be the history of Democratic animosity toward the solicitor general’s office, caused in part by Tseytlin’s conservative advocacy in major cases.

He argued and won two Supreme Court cases on behalf of Wisconsin: the regulatory takings case Murr v. Wisconsin in 2016, and Gill v. Whitford, the political gerrymandering case, in 2017. Tseytlin’s official profile notes that in his previous job as West Virginia’s general counsel, he “specialized in litigation challenging unconstitutional and otherwise unlawful overreach by the federal government.”



After the office was created, a Democratic legislator grumbled that it would become “a mini right-wing law firm in the attorney general’s office.” Tseytlin oversees a chief deputy solicitor, three deputy solicitors and an assistant solicitor. His chief deputy, Ryan Walsh, was a former clerk to Justice Antonin Scalia and a Jones Day associate.

On the campaign trail, Democratic Attorney General candidate Josh Kaul said he would keep the position of solicitor general but would restructure the six-lawyer office if elected, which he was. Kaul said the cases the office has taken on are “highly partisan and are not serving the interests of Wisconsinites.”

It may be that the Republican legislators, in the midst of their other agenda items, saw fit to give Democrat Kaul more than what he wanted: no solicitor general’s office at all.

With the shoe on the other foot, that void may hamper the new administration’s ability to litigate cases taking positions that Republicans, not Democrats, may soon view as partisan.

 


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