(l-r) Erin Murphy, Michael Carvin and Kannon Shanmugam. ()
With President-elect Donald Trump’s transition team announcing nominations to important positions almost daily, speculation within the appellate bar is intensifying about who will be the next U.S. solicitor general, the government’s top lawyer before the U.S. Supreme Court.
“It’s the dream job of any appellate lawyer,” said King & Spalding partner Bobby Burchfield, whose name has been mentioned as a possible nominee, among others. The late U.S. Supreme Court Justice Thurgood Marshall, for all his stature in other positions, once said being the solicitor general was “the best job I ever had.”
Speculation ebbs and flows depending on other dynamics within Trump’s transition team and his nascent administration. When Jones Day partner Donald McGahn II was named as White House counsel, the fortunes of two other Jones Day partners who have been widely mentioned as possible SGs — Noel Francisco and Michael Carvin — seemed to rise.
Carvin’s take-no-prisoners argument style in cases attacking Obamacare and other President Barack Obama initiatives may appeal to President-elect Trump. If Francisco is nominated, it will immediately be noted that during an oral argument last term, he mistakenly addressed Justice Ruth Bader Ginsburg as “Justice O’Connor.” But Ginsburg brushed it off. She once put it like this: “Many a distinguished counsel — including a Harvard Law School professor and more than one solicitor general” have committed the same faux pas over the years.
Christopher Landau of Kirkland & Ellis, whose colleague Brian Benczkowski is on the transition team for the U.S. Department of Justice, has also been mentioned for the job. Benczkowski worked for Sen. Jeff Sessions, R-Alabama, who is likely to play a role in making the pick. Erin Murphy, a newer Kirkland partner, a former Bristow Fellow at the SG’s office and a protege of former SG Paul Clement, could also be in the mix for the same reason. Benczkowski did not respond to a request for comment.
Most of the possibilities so far have deep experience as Supreme Court advocates and many also have past connections to the SG’s office. The Trump transition team did not respond to requests for comment, and there is no sign that an announcement is imminent.
Other possible candidates with experience in the solicitor general’s office include Kannon Shanmugam of Williams & Connolly, Miguel Estrada of Gibson, Dunn & Crutcher, Thomas Hungar, former deputy SG and a former Gibson Dunn partner who now is general counsel for the U.S. House of Representatives. Gibson Dunn partner Helgi Walker has also been mentioned in legal circles.
If Trump wants a more outside-the-Beltway perspective, he could choose Scott Keller, the current SG of Texas, and John Bursch, a former Michigan SG who has gone into private practice.
But no matter who becomes solicitor general, the office’s culture and traditions make it unlikely that the rest of the small office will change very much. Trump’s “drain the swamp” promises may test that tradition, but appellate lawyers with experience in the office think it will persist.
“The solicitor general’s office is a place where stability reigns,” said Pratik Shah, a former assistant to the SG and now co-head of Supreme Court and appellate practice at Akin Gump Strauss Hauer & Feld. Shah, who worked in the solicitor’s office for six years under several SGs, said that in the lower ranks of the office, there was “remarkably little change” when a new administration of a different party came in.
Deanne Maynard, another former assistant and now co-chair of the appellate and Supreme Court practice at Morrison & Foerster, said she did not see much change in the office during the transition from President George W. Bush to President Obama. “The career employees largely remained the same,” she said. “That provides a good deal of stability.”
“The true stability is in the deputy ranks,” Shah said, referring to longtime career deputies Edwin Kneedler, Michael Dreeben and Malcolm Stewart. Only two of the roughly 22 lawyers in the office are political appointees — the solicitor general and the principal deputy.
As for the approximately 17 assistants to the solicitor general, Shah said they are the result of “truly bipartisan hiring,” so he does not expect a large turnover in those ranks as a result of the change in administrations unless “an outlier” is appointed solicitor general.
Maynard also expects “some turnover” among the assistants. “But I expected that before the election. Some of the assistants are at the point in their careers where they are ready to make a change.”
The office’s continuity reflects in part the Supreme Court’s traditional expectation that the solicitor general’s office does not suddenly change direction just because a new president takes office. In a large percentage of cases involving executive branch agencies and powers, the United States’ interests remain the same, though in hot-button cases, shifts in position are expected.