The Solicitor General and the Unitary Executive

The Senate Judiciary Committee heard testimony today from the two nominees to be Solicitor General and deputy SG in the Department of Justice. The SG is often regarded as the 10th Justice of the Supreme Court because of the ability to get the Supreme Court to take on a case when asked. The SG is the person who argues, on behalf of the United States, in the Supreme Court, and the person who supervises the prosecutors in the DoJ. If the Attorney General is the chief law enforcement officer of the US, then the SG is the chief prosecutor. In the last 25 years, this position also has been an important point person for carrying the president's political agenda in the federal courts and is often called the president's "spear carrier."

President Obama selected Elena Kagan, the current dean of Harvard Law, to be his SG. Kagan is a woman of incredible talent and intellect, and I have been very appreciative to her for taking the time to speak with me when I was working on my dissertation.

Kagan had previously served as a domestic policy advisor to President Clinton, and it was that experience that enabled her to witness presidential power up close and personal. And as a result of this experience, Kagan both documented and became sympathetic to the unitary executive theory and its practice during the Clinton administration. Her experience was reflected in a massive article that appeared in the Harvard Law Review in 2001 titled "Presidential Administration." Presidential administration is what she called the unitary executive theory, and the article has been an important link tying unitarian values across presidential administrations, including importantly a Democrat. Thus it is important to note that, despite the change in presidencies and all the rhetoric that implies, the DoJ remains solidly behind advancing presidential power according to the dictates of the unitary executive. An example of how little the DoJ has changed is captured in yesterday's Washington Post, which documents the Holder Justice Department's support for the State Secrets privilege.

For those of you interested in the support for the unitary executive in the Clinton administration, you may now have access to the 2001 article in HLR. The Senate Judiciary Committee has placed on its website all the documentation surrounding Kagan, which includes letters of support AND publications. You can find her article under the link, "Question 13.A.--Publications--Part 1. (.pdf required)"

Enjoy!