Before appealing an adverse district court ruling to the court of appeals or making a subsequent appeal to an en banc panel, the solicitor general’s office exhaustively reviews the merits of doing so, said Clement. While time consuming ― the process is repeated about 2,000 times each year ― the review helps ensure that the federal government is taking uniform positions throughout the various courts of appeals and district courts. This, in turn, helps the government avoid the creation of potentially self-defeating circuit splits and allows it to gauge whether adverse decisions, however appropriate for the case at hand, “don’t make sense for the longer-term interests of the federal government,” said Clement. Equally important, he added, “We want to make sure that the positions being argued are positions that we, in the SG’s office, would feel comfortable defending in the Supreme Court of the United States.”
The review is even more rigorous for cases the solicitor general considers for certiorari petitions to the Supreme Court, he said, noting that his office turns down the majority of cases suggested to it by government agencies. That diligence making sure that only the most compelling cases are put forward is rewarded; about 70 percent of the solicitor general’s “cert” petitions are granted. “The Court takes our petitions very seriously,” said Clement.
Having personally argued almost 50 cases before the Court as a member of the Office of the Solicitor General since 2001 and earlier as head of appellate practice at King & Spaulding, Clement said the moot court process in his current position is “hard to replicate.” Each argument is refined through two moots, one before a panel of seasoned Supreme Court advocates in the office and the other before a panel of lawyers from other branches of government who are most directly involved in the litigation. “Those lawyers are invaluable to preparing the case for the justices’ questions,” he said. “They back us up with the expertise that we need to make very detailed arguments in the Supreme Court in ways that are technically accurate, but also are put in terms that the ‘generalist’ federal judges who are our nine Supreme Court justices can understand and appreciate.”
The solicitor general is an officer of the executive branch and is most frequently defending the legal positions of an executive branch agency, but also has unique obligations to the other branches of government, Clement noted. “We have an important responsibility to defend the constitutionality of acts of Congress,” he said. “There is a long-standing tradition of the office that unless the case implicates the Article II authority of the president, the office will defend acts of Congress as long as reasonable arguments can be made. Other parts of the executive branch might not agree with the statute on the policy side.”
The solicitor general also has a “special relationship” with the judiciary, he said, well demonstrated by the fact that the Supreme Court will sometimes invite the office to comment on cases in which it is not involved before certiorari is granted. “We will tell the court what we think of the decision below [and] whether we think the case serves the federal interests in a particular area, and we will tell the court whether we think the case meets the court’s criteria,” said Clement
The address of United States Solicitor General Paul Clement, sponsored by the Program in Public Law, is available as a webcast.