Note: A correction has been appended below.
As ThinkProgress previously reported, many of Solicitor General Elena Kagan’s right-wing opponents now claim that her lack of prior judicial experience disqualifies her for the bench — in many cases despite their previous willingness to embrace conservative nominees who also have not served on the bench. The right’s attack on Kagan’s record does far more than expose its hypocrisy, however. It ignores how fully General Kagan’s prior experience prepares her for a seat on the Supreme Court.
Presently, Kagan serves as Solicitor General of the United States, a burdensome job which supervises tens of thousands of cases every year across a wide-range of legal issues and jurisdictions. General Kagan’s most well-known duty is also the most high-profile aspect of her job: Kagan serves as the United States’ chief litigator before the Supreme Court, where she argued six cases this past Term.
General Kagan’s second duty is to advise the Justices on which of the over 8,000 parties seeking Supreme Court review should receive a rare hearing before the high Court. The Supreme Court commonly calls for the views of the Solicitor General with respect to whether a particular petition for review should be granted, a request lawyers refer to as a “CVSG.” Moreover, the SG’s views are taken very seriously by the Justices, who agree with the SG’s recommendation approximately 80% of the time. In this sense, the job of SG prepares Kagan for one the most important tasks of a Supreme Court justice: culling through the thousands of petitions seeking Supreme Court review to identify the handful of petitions that should be granted.
As former SG Seth Waxman explains, however, handling the Supreme Court is the least of Kagan’s duty. Indeed, the SG is responsible for more cases than any other lawyer in the United States.
Representing a client that is a party in approximately one-half of all cases pending in the federal courts, the Solicitor General is responsible both for determining what position the United States will take on many important questions of federal law and often for choosing the specific cases in which to advance that position. No other lawyer superintends thousands of cases at a time, and none other has the authority to decline to pursue cases solely because doing so would not promote the orderly development of the law. These two facts carry the potential to mean a great deal.
To clarify, the SG supervises every single appeal in which the United States is a party — about half the cases in the U.S. Courts of Appeal. According to the Administrative Office of the US Courts’ annual report on “Federal Judicial Caseload Statistics,” federal appeals courts heard just under 46,000 cases in one year. Slightly more than half of these cases — over 23,000 cases — were overseen by the Solicitor General. Moreover, this figure underestimates the extent of General Kagan’s workload. The 23,000 cases discussed in this report represent cases which are actually appealed to a Court of Appeals. The Solicitor General, however, also has final authority over whether the United States will appeal a case that it lost at the trial level, which means thousands more cases that the SG considers and ultimately decides not to appeal. In this sense, the SG oversees far more cases than even a Justice of the United States Supreme Court; and the SG has another, final duty. As part of their supervisory role, the SG is responsible for designing the appellate litigation strategy of the United States — deciding which issues to emphasize, which arguments to advance and which cases to set aside. As General Kagan is President Obama’s first Solicitor General, this final duty is particularly intensive. The Obama Administration’s view of the law is, simply put, very different from that of the Bush Administration, so Kagan needed to delve deep into the federal government’s entire litigation docket to root out Bush-era priorities that needed to be revised.
In other words, Kagan currently performs what may be the single most demanding job in the American legal profession, and she performs it with distinction. By comparison, her new role as a Supreme Court Justice should be less strenuous.
CORRECTION: A reliable source informs ThinkProgress that the Solicitor General is responsible only for supervising Court of Appeals cases where the United States lost in the court below, not all cases involving the United States that are appealed, as the original post states. This means that the actual number of cases supervised by the SG’s office is closer to 1500 per year, not 23,000 as originally stated. We apologize for the error.