Solicitor General’s Office Adjusts as Prelogar Steps Back

Elizabeth Prelogar must step away from the U.S. solicitor general’s office while the Senate considers her nomination to lead the office permanently with a new Supreme Court term on the horizon featuring guns and abortion.

Moving from an acting role to a permanent one as the so-called Tenth Justice will force the appellate specialist to find a home somewhere else in the Justice Department for the time being. In the interim, Brian H. Fletcher, an appellate litigator who has helped lead the Stanford Law School Supreme Court Litigation Clinic, will serve as acting solicitor general, according to the Justice Department.

There’s no word on the timing for Prelogar confirmation hearings with the Senate out of town until after Labor Day. Senate Judiciary Committee Chair Dick Durbin’s (D-Ill.) office didn’t return a request for comment on the vetting schedule for Prelogar, who was nominated Aug. 10 after serving as principal deputy and acting solicitor general since January.

Solicitor general nominees going back to 1989 take an average of three months to win confirmation. Even under the most aggressive schedule, planned Senate recesses in September would make it difficult for Democrats to hold a hearing, and committee and floor votes for Prelogar before the start of the high court term Oct. 4.

But two people familiar with the vetting process and the role of the Solicitor General’s Office told Bloomberg Law that there doesn’t appear to be any rush, noting that it took nearly seven months for the White House to nominate someone and there’s a deep bench of attorneys in that office available to help oversee things temporarily.

VIDEO: We asked Elizabeth Prelogar and some of her fellow former Ruth Bader Ginsburg law clerks what it was like to work for the Notorious R.B.G.

Federal Vacancies Act

The rule requiring Prelogar to step aside for now stems from concerns that presidential administrations had used acting positions to get around the often time-consuming and potentially politically fraught confirmation process.

The 1998 Federal Vacancies Act was enacted after President Bill Clinton appointed Bill Lann Lee as acting assistant attorney general for civil rights after his nomination stalled in the Senate. As a result, the Federal Vacancies Act limits the time someone can serve on an acting basis and prohibits nominees from serving in that role.

The previous solicitor general, Jones Day partner Noel Francisco, was detailed to another Justice Department office between serving as the principal deputy and acting solicitor general in the Trump administration and his confirmation to the permanent spot in September 2017.

While his languished for more than six months, nominees going back more than three decades have typically been confirmed within three months. The shortest was Ken Starr, who was nominated by George H.W. Bush in 1989 and confirmed in 44 days.

Temporary Tenth Justice

Preparing for, and determining the federal government’s position in early cases next term will now fall to Fletcher. Fletcher served with Prelogar as an Assistant to the Solicitor General, arguing 13 cases in front of the justices. Also like Prelogar, Fletcher clerked for Justice Ruth Bader Ginsburg and then-Judge Merrick Garland.

The Justice Department didn’t return a request for comment on the next steps.

Fletcher is likely to be assisted by the four career deputies, including Ed Kneedler, who briefly led the office in 2009 during the switch between the Bush and Obama administrations.

Kneedler has a wealth of institutional knowledge, having been in the Solicitor General’s Office since the late 1970s. He’s one of just a handful of attorneys to have argued 100 or more cases before the Supreme Court.

And he’s not the only deputy to lead the office. Barbara Underwood, the first women to take on the duties of the U.S. solicitor general, served in an acting capacity in 2001. Underwood is currently the New York State solicitor general.