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January 18, 2009

"Katyal Tapped as Principal Deputy in SG's Office"

The BLT Blog has this report on the significant news concerning who will be second banana in the Office of the Solicitor General.  Here are the details:

Legal Times has confirmed that Georgetown law professor Neal Katyal, who successfully argued the landmark detainee rights case Hamdan v. Rumsfeld before the Supreme Court, will serve as principal deputy solicitor general, the office’s No. 2 spot, starting Tuesday.

Katyal's appointment is another strong signal of President-elect Barack Obama's intentions to depart sharply from the terrorist detention and interrogation policies of the Bush administration....

The pick also means the Justice Department's Office of the Solicitor General could be led by two lawyers who have argued a combined two cases before the Supreme Court. Earlier this month, Obama announced the nomination of Elena Kagan, the dean of Harvard law School, to be solicitor general. Kagan, who has never argued before the high court, has received broad support in the legal community. A date for Kagan's confirmation hearings has not been set....

The principal deputy is also known as the the "political deputy," though, as Legal Times pointed out in this 2005 story, the exact nature of the job is a matter of dispute.  Some principal deputies have been pegged for White House moles, while others have defended the office's positions when they were at odds with the administration's.

So, if it is now clear that the new Administration through the SG's office  is going to depart sharply from the Bush Administration terrorism policies, can or should I be hopeful that they might also depart sharply from the Bush Administration on other criminal justice policies with constitutional dimensions?  Might there be a real chance that the SG's views on acquitted conduct enhancements or the application of Booker or mandatory minimums might change in the months and years ahead?  One can only hope, though one also should fear the impact of status quo biases even as a new set of lawyers take over the reins of power.

UPDATE:  Over here at LSI, I suggest that this appointment of another prominent academic in a key SG position provides yet another indication that the disjunction between the legal academy and the practicing bar is likely to shrink in the new Obama Administration.  (Regular readers may recall that, in the wake of his work in Hamdan, Neal wrote a terrifically interesting Harvard Law Review comment encouraging the legal academy to go practice.)

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January 18, 2009 at 08:24 PM | Permalink

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I imagine Holder has retained enough of his prosecutorial instincts to know that if the SG's office starts taking positions adverse to the line attorneys, morale in the DOJ will take a serious hit, especially after all the pooh-poohing over Goodling and Schlozman and how awful it was that they politicized the non-political portions of Justice. Add to that the fact that mandatory minimums were passed by Congress, and I don't see the SG's office pushing to have sentencing statutes declared unconstitutional, particularly when those statutes are some of hte most powerful tools in a federal prosecutor's arsenal. I can see some flexibility with respect to the application of Booker, but the acquitted conduct issue seems pretty settled and mandatory minimums seem untouchable absent congressional action or instruction from the AG to stop charging those counts.

I'm somewhat sympathetic toward the acquitted conduct arguments, and mandatory minimums in most drug cases are an abomination, but that doesn't mean that the SG's office should set policy for the DOJ or advocate against the positions of Congress and longstanding DOJ practice.

Posted by: Main Justice Monkey | Jan 19, 2009 12:27:55 AM

Hey, MJM, can you give me a situation where the SG would *HAVE* to argue that mandatory minimums were unconstitutional?

Posted by: S.cotus | Jan 19, 2009 7:57:00 AM

Not offhand, no. I haven't had much interaction with the SG's office, but in casual conversations with attorneys there, my impression is that they view their job as to advocate on behalf of the constitutionality of any given federal statute (unless, I suppose, it infringes on the prerogatives of the executive branch, but that's just my speculation).

The only reason the SG's office will depart sharply from the Bush Administration terrorism policies is because the executive branch as a whole will do so. The SG's office should not be taking policy positions independent of the rest of the government.

Posted by: Main Justice Monkey | Jan 19, 2009 9:15:27 AM

MJM. "The SG's office should not be taking policy positions independent of the rest of the government."

I agree with that in theory. However, not all attorneys are good at arguing policy position that are manifestly at odds with their personal beliefs. It's a bugaboo of the Foreign Service too. It should be interesting to see just how much turnover there is among the staff there. It will be a good indication of just how much people really believed in what Bush was doing, or just following orders.


Posted by: Daniel | Jan 19, 2009 10:48:05 AM

MJM, so what is your big fear? The administration will likely change its POLICIES (regarding GTMO for sure, and regarding sentencing maybe) and most of those policies will probably avoid the constitutional problems that the Bush administration got itself into for political reasons.

By statute, the SG can take over representation of any case in any court by a government agency. However, if the administration's policy were to, say, favor a defendant this wouldn't be an issue and there wouldn't be litigation. (I guess there might be some narrow band of remands based on a Bush policy that doesn't exist anymore, but those would be few and far between.)

Whatever the case, DOJ lawyers are used to policy changes, so I don't see how morale would suffer based on another one. They would adapt.

Morale suffers if people get fired for no reason, or they are personally harassed. But if one organ decides to do something, so long as nobody gets fired for doing their job well, I doubt anyone is going to be too pissed.

Posted by: S.cotus | Jan 19, 2009 4:29:27 PM

"MJM, so what is your big fear? The administration will likely change its POLICIES (regarding GTMO for sure, and regarding sentencing maybe) and most of those policies will probably avoid the constitutional problems that the Bush administration got itself into for political reasons."

Sure, policies will change, and with respect to terrorism-related stuff, you're probably right with the latter part of your claim. If the AG says "our new policy is to not do X," people might grumble depending on the content of X but they'd generally go along. If the SG's office decided to hinder prosecutorial efforts by pushing constitutional law in a particular direction, though, the reaction from the trenches would be much different. Convictions people worked hard to get would be overturned, violent criminals who were put away fairly and squarely under the current rules would be released, and everyone would be saddled with appellate work and remands for years sorting out issues relating to, say, a holding that stacked mandatory minimums violate the 8th Amendment.

Here's a recent example: a lot of prosecutors were pretty pissed off by the Santos decision. Quite a few people thought the Court had its head up its heinie on that one, but courts occasionally do that sort of thing and you live with it. But if it was the SG's office that went to the Court and encouraged them to bone that statute, there would be a sense of betrayal and a feeling that not everybody in DOJ is playing on the same team.

The SG's Office is there to be the crack commando squad of eggheads that deals with the particularly hairy legal issues and engage the Supreme Court. It's not there to decide that mandatory minimums are too harsh and should be unconstitutional. Similarly, an AUSA on a drug docket who doesn't believe that drugs should be illegal isn't free to simply decline every drug case presented to him. The difference is that the AUSA can't do all that much harm, while an SG's office with an agenda could get a court to constitutionalize all sorts of crazy stuff in ways that adversely impacts the worklives of a great many DOJ employees.

"I agree with that in theory. However, not all attorneys are good at arguing policy position that are manifestly at odds with their personal beliefs."

The SG's office guys I've spoken with are proud of their commitment to litigate on behalf of the United States regardless of their personal opinions. All of them could point to positions they'd taken with which they personally disagreed, but my impression was that it is a serious code of honor in that office that the government is your client and you represent the hell out of it.

Posted by: Main Justice Monkey | Jan 19, 2009 6:13:02 PM

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