Friday, July 30, 2010

When will Obama appoint a new SG?

Sandy Levinson

Linda Greenhouse has a fascinating post in the New York Times on a case challenging the felony-voting prohibition under the Voting Rights Act. She correctly notes the wide-ranging importance of the issue: In Virginia, 20% of all African-American males are deprived of the ballot because of Virginia's draconian laws. But this isn't the main point of my posting. She also notes that the Court has "invited" the Solicitor General to submit a brief indicating the position of the United States as to whether or not cert. should be granted with regard to the case being appealed from the First Circuit (which rejected the VRA argument).

But, of course, we don't have a "full-scale" Solicitor General right now. Soon-to-be Justice Elena Kagan is obviously no long acting as SG; I assume that her able assistant Neal Katyal is serving as the acting SG. Apparently, she has not resigned and is still receiving her salary while on leave. (It is presumably thought "presumptuous" to resign an existing job before confirmation; none of the sitting judges did so, and, indeed, Robert Bork went back to the DC Circuit for a while before resigning.)

But Kagan will be confirmed next week and, presumably, take the oath of office within a day or so, since she really has to start reading a lot of cert petitions, etc. Is it unfair to expect the President to name her successor within a week (at the latest) after her formal resignation? (And, if the mad-dog Republicans mount a filibuster, will the President make a recess appointment? If not, why would anyone of stature submit him/herself to the present circus of the Senate?) Or will this simply become another example of Administration dithering, as has been true with regard to naming someone to head OLC (after the Administration's throwing Dawn Johnson to the solves) and filling a plethora of vacancies on various federal courts?


Maybe they can nominate Kagan's pal Miguel Estrada. She wrote him a letter of reference, after all.

Seriously, Dawn Johnsen had some nice words here.

Who is the potential nominee most likely to give Justice Scalia apoplexy in the course of his/her first appearance before the Court?

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