Who Replaces Kagan?

Published Wed, May 12 2010 9:17 AM

An overlooked aspect of the Kagan nomination is the question of who will replace her as Solicitor General should she be confirmed by the Senate. One legitimate knock on Kagan as Solicitor General was that she had little to no courtroom experience prior to becoming Solicitor General. It was clear to all in attendance during Kagan's first ever oral argument before the Supreme Court (and likely before any court) during Citizens United, that her inexperience hurt her. This piece from Salon discusses the sitting Supreme Court justices' treatment and perception of Kagan during her six appearance before the Court. For those who remember Republican Solicitors General such as Charles Fried, Ken Starr, Ted Olson and Paul Clement, an effective advocate before the high court is not insignificant.

At The Atlantic, Mark Ambinder reports that "Don Verrilli, an associate White House counsel, is the leading candidate" to replace Kagan should she be confirmed. More from Ambinder:

Verrilli joined the Obama administration as an associate deputy attorney general, where he helped his close friend, Attorney General Eric Holder, craft the Justice Department's new state secrets doctrine guidelines. 
A few months ago, new White House counsel Robert Bauer asked him to move a few blocks down Pennsylvania Avenue to fill an associate White House counsel's position, theoretically a demotion for such an experienced litigator.

But Verrilli knew he was paying a transient occupancy tax: the White House needed a better relationship with the Justice Department, and Verrillii, a low-key, get-along guy, was just the ticket. Verrilli spent years at Jenner and Block in Washington, representing a diverse array of clients. Copyright law is one of his specialities; he's known as the "guy who killed Grokster" on behalf of Viacom. Verrillii has argued frequently before the Supreme Court.

Why not Neal Katyal, the deputy solicitor general? Sources say that no one questions his brilliance, but his relationship with colleagues hasn't always been smooth. (Update: I screwed the pooch on this one. Katyal gets along with his Justice Department colleagues just fine. And I never should have allowed "sources" to anonymously trash someone) 

Verrillii's trial balloon appointment as SG will be viewed suspiciously by civil libertarians for his authorial role in the state secrets drama and for his record of fighting on behalf of industry against tech entrepreneurs. But he's got the trust of Holder, Bauer, and President Obama.

"Conversations about a replacement haven't even begun," a White House spokesperson said. 

An op-ed from a Washington State paper also throws out the name of Washington Governor Chris Gregoire as a possibility.

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