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‘Tenth Justice’ Nominee Prelogar Defends High Court Flip Flops

Sept. 14, 2021, 5:44 PM

Elizabeth Prelogar defended her decisions to change the federal government’s position in several high-profile cases pending before the justices while serving as the Biden administration’s acting solicitor general earlier this year.

Prelogar was later nominated to officially lead the office, which represents the government in the U.S. Supreme Court. Former solicitors general under both Republican and Democratic administrations back her nomination.

During her Senate Judiciary Committee confirmation hearing Tuesday, Ranking Member Chuck Grassley (R-Iowa) said the administration under her watch had changed positions in an unusually high number of cases, quoting a Bloomberg Law story that found the Biden administration was set to reverse course in more cases than under Trump.

In under two months, the Biden administration switched positions to defend the Affordable Care Act, side with union organizers in a takings case, reject a test put forth by the Trump administration in a voting rights dispute, support a California donor-disclosure law, and argue for a sentence reduction in a case under the new First Step Act.

“Such flip flopping impacts the credibility of the Solicitor General,” Grassley said during the hearing. “Are you worried about the office losing credibility?”

Prelogar agreed that such changes in position were “an investment of the office’s credibility” and said that “credibility and stability are really important values for the Solicitor General’s Office.”

“I certainty—in the time when I was Acting Solicitor General—did not make any of those decisions lightly,” Prelogar said.

The First Step Act case in particular was troubling to Sen. Tom Cotton (R-Ark.).

In a last minute change that forced the justices to reschedule the argument, the government argued in Terry v. United States that sentencing reductions available to high-level drug offenders should be available to lower-level ones, too.

The Supreme Court rejected the government’s new position 9-0.

“How did your office get it so wrong?” Cotton asked.

Noting that the lower federal appellate courts had divided on the issue, Prelogar responded the she’d determined that Congress intended to extend the sentencing reductions to all levels of offenders.

“Ultimately, I wish we could persuade the court in each and every case,” Prelogar said. “I can’t quite bat a thousand like that.”

Prelogar, who worked in the Solicitor General’s office earlier in her career, took few questions from senators, who spent most of the confirmation hearing focused on a pair of federal appellate court nominees.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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