All Things Considered

Solicitor General

July 22, 1997 -- As acting US Solicitor-General, Walter Dellinger is the person who argues the government's position in cases that go before the Supreme Court. But what is involved in the day-to-day operations of his office, and what does Dellinger do to present these important cases? NPR's Nina Totenberg spent four months in the office of the Solicitor-General, and has this extended report on an office supposed to be independent, and to have a special relationship with the Court -- some even refer to it as the 10th Justice -- yet one whose occupant is appointed by the President and represents the Administration in power.


Read the transcript:

ROBERT SIEGEL, HOST: This is ALL THINGS CONSIDERED. I'm Robert Siegel.

LINDA WERTHEIMER, HOST: And I'm Linda Wertheimer.

The right to die, gun control, religious freedom, abortion clinic protests -- all these issues came before the Supreme Court in its last term. And in all of these cases, the government's position was argued by the same man. He is Walter Dellinger, the Acting Solicitor General of the United States.
His name and title are not as well known as those of many people in Washington, but it is the solicitor general who in effect represents the American people before the Supreme Court.
For the past four months, NPR's Nina Totenberg was given access to the solicitor general's office, on condition that she not reveal what she had learned until after the court term had concluded. This is her report.

NINA TOTENBERG, NPR REPORTER: For more than a century, the Office of Solicitor General has been one of the most powerful in government. While outside of the government, the office is little known, the men who have held the job are household names in the law.

Archibald Cox, later to become famous as Watergate Special Prosecutor, argued the one person/one vote case for the Kennedy administration in the Supreme Court.

ARCHIBALD COX, FORMER SOLICITOR GENERAL, ARGUING BEFORE THE SUPREME COURT: But I suggest to you that judicial inaction through excessive caution or though a fancied impotence in the face of crying necessity and very serious wrongs, may also do damage to our constitutional system. I also...

TOTENBERG: Thurgood Marshall, solicitor general in the Johnson Administration, was most famous for his earlier arguments against school segregation.

THURGOOD MARSHALL, FORMER SOLICITOR GENERAL, ARGUING BEFORE THE SUPREME COURT: I don't know of any more horrible destruction of principle of citizenship than to tell young children that those of you who withdrew, rather than to go to school with Negroes...

TOTENBERG: Irwin Griswold (ph) argued for banning publication of the Pentagon Papers in the Nixon administration.

IRWIN GRISWOLD, FORMER SOLICITOR GENERAL, ARGUING BEFORE THE SUPREME COURT: I haven't the slightest doubt myself that the material which has already been published and the publication of the other materials affects American lives...

TOTENBERG: Robert Bork argued for the death penalty in the Nixon administration.

ROBERT BORK, FORMER SOLICITOR GENERAL, ARGUING BEFORE THE SUPREME COURT: We know as fact that the men who framed the 8th Amendment did not mean to outlaw capital punishment, because they...

TOTENBERG: And Kenneth Starr, later to become Whitewater Independent Counsel, argued against Roe versus Wade and the right to abortion when he was solicitor general in the Bush Administration.

KENNETH STARR, FORMER SOLICITOR GENERAL, ARGUING BEFORE THE SUPREME COURT: It is my view that the state can look out and say: we, as we have historically, regulate and legislate in the interests of those who will come into being -- who will be born...

TOTENBERG: Of all the nation's public officials, including even the attorney general and the justices of the Supreme Court, the solicitor general, or "SG" as he's known, is the only one required by statute to be learned in the law.

His job is to represent the United States in the Supreme Court; to defend where appropriate presidential actions and laws enacted by Congress, and the federal government's interests.

In that capacity this term, the Clinton administration's Solicitor General Walter Dellinger participated in about three- quarters of the cases heard by the court.

WALTER DELLINGER, SOLICITOR GENERAL OF THE UNITED STATES: It is very important for anybody who is in the Office of the Solicitor General to recognize that the president is not your client. Your client is the United States, and the United States has ongoing, continuing interests that precede and post-date any particular administration that's in power.

TOTENBERG: The idea, he says, is not to make policy, but to defend policy choices if they're defensible.

DELLINGER: You're not always going to agree with -- certainly not with the policies that Congress has adopted. But, you know, the people of the United States are entitled -- when their elected representatives pass a law -- in a democracy they're entitled to have someone make the best case to the Supreme Court about why the law that the people's representatives have adopted ought to be left standing.

TOTENBERG: The Office of Solicitor General is steeped in the tradition and the lore of the law. In court, the solicitor general wears a costume of vest and tails that almost matches the quill pens on the desks. He's the only lawyer to have an office at the Supreme Court, though his day-to-day work takes place at his Justice Department office.

From there, the SG presides over a small cadre of lawyers widely viewed as among the best and brightest inside or outside the government. While the accoutrements of the job might seem to be for Thomas Jefferson, Walter Dellinger's approach is more like Bruce Springsteen's.

He bikes to the office, works to music from boogie to the blues, and comes from a background more blue collar than brahmin. Neither of his parents went further in their education than high school, and when Dellinger was 12, his father died and his mother was left to support three children.

That was the moment, says Dellinger, that he first became a feminist, though he didn't recognize it at the time.

DELLINGER: I watched her every day head off to work. She put on a hat and gloves and she would head out, take the bus downtown, and there was almost no job that she could get with -- being a woman without a college education. And seeing how hard it was for her to finally get a job as a sales clerk, you know, and she worked six days a week, all day long, trying to support a family.

TOTENBERG: Eventually, Dellinger won scholarships to college and law school, and became one of the nation's preeminent constitutional scholars teaching at Duke. He met Bill Clinton during the 1992 campaign, and after the election, Dellinger went for a few months to the White House and then to the Justice Department as an assistant attorney general.

Last year, he was appointed the acting solicitor general. At the department, Dellinger is perhaps most famous for enticing the physically self-conscious Janet Reno to dance at the department Christmas party.

JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES: So Walter got this gleam in his eye and came over and said "you're next."

DELLINGER: I think to everyone's amazement, Janet Reno came out, took off her shoes, "Mustang Sally" was playing...

RENO: I even felt like I could do it a little bit.

TOTENBERG: With your shoes off, I hear.

RENO: Yes, with my shoes off. One should never dance with Walter with your shoes on.

TOTENBERG: Dellinger never passes up an opportunity for a joyous bite of life like this, but what goes on in the SG's office most of the time is gruelingly hard work.

SOUNDBITE OF TRAFFIC

DELLINGER: Now, when I see the Supreme Court out the window -- when I see the lights on, I think if they're still working, I need to still be working.

TOTENBERG: One of the SG's little known, but important duties is that he must approve every appeal filed by the United States government from any agency, anywhere in the country. Every day, a dozen or so cases arrive on his desk, probably 4,000 or 5,000 a year.

DELLINGER: When the solicitor general decides not to appeal a case, it's over.

TOTENBERG: And the Secretary of Education or the Secretary of Defense or the Secretary of State can be standing there railing at you...

DELLINGER: Right.

TOTENBERG: ... but they don't have any power.

DELLINGER: Whoever's in this office, the solicitor general's office, has the final authority to decide and you make a lot of people unhappy, because I think we reject -- something like six out of seven requests from cabinet departments to appeal cases are turned down.

TOTENBERG: The only thing wrong with the job, says Dellinger, is that there's so much of it.

DELLINGER: It's like this Lucille Ball program, you know, where the -- where she's in this factory and the pies fall of the end of the conveyor belt.

TOTENBERG: At the same time Dellinger is making daily decisions on which cases to appeal, the SG, like a juggler, must be preparing for his oral arguments before the Supreme Court. There are moot courts -- practice sessions where his staff pretends to be the justices grilling him -- and there are days of study.

This term, Dellinger argued an extraordinary nine cases -- an average of one a month -- on subjects ranging from presidential immunity to the right to die, to the constitutionality of the Brady gun control law, the line-item veto, cable TV laws, and a law seeking to expand religious freedom.

DELLINGER: The preparation is really very intense. I woke up -- you know, you wake up thinking about the case. When you wake up, you wake up thinking of questions.

TOTENBERG: And with a court that is wont to interrupt any presentation with literally dozens of questions, all plans are likely to go awry, a fact which Dellinger cheerfully jokes about as he's getting dressed to argue a major religious freedom case.

DELLINGER: I'm going to have a lottery on how much I get to say before I'm interrupted with a question. How long? What do you think?

TOTENBERG: Dellinger seems ebullient, even though, as he notes, his preparation as SG is relatively brief compared to the six months of preparation he took when he argued a case as a private lawyer in 1990.

The next time Dellinger argues a case will be a test of the line- item veto, and this time his nerves are obvious, and possibly an omen. As he sits in his place in the courtroom waiting to begin, the court announces its decision in Clinton versus Jones, unanimously rejecting the president's contention that he has temporary immunity from civil lawsuits during his time in office.

Dellinger claims the loss didn't rattle him, but for the second time this term, he makes a mistake of horrific proportions, especially for a lawyer who made a national reputation as an advocate for women's rights. He mixes up the names of the two female justices.

DELLINGER: And Justice Ginsburg asked the first question, and it's just like, you know, putting a gun to your head, to turn and say: "Justice O'Connor..."

TOTENBERG: Mimicking Ginsburg's reaction, Dellinger puts his hands to his face.

DELLINGER: Of course, Ginsburg goes like this, but she smiles at least. And, you know, fortunately, I stepped back and said, "I can't believe I've done this again."

TOTENBERG: At least, says Dellinger, the reality is never as bad as his dreams.

DELLINGER: I dreamt four nights ago that I showed up 15 minutes late -- it was 10:15 -- and I was in a T-shirt and blue jeans, and I was going to have to go up to the chief justice and say: "I'm really, really sorry. I don't know what happened. Would you rather have me argue in my T-shirt and blue jeans? Or would you all like to wait here another 20 minutes while I rush back and try to get, you know, the outfit on."

And the worst part of it was, I couldn't remember why we thought the act was constitutional.

TOTENBERG: Walter Dellinger is leaving the Clinton administration next month, returning to Duke and North Carolina, where his wife Anne (ph) has a tenured teaching position she loves.

DELLINGER: Anne and I talked about this. We don't want to be living apart anymore. I really think it's time for me to go home.

TOTENBERG: And what about his personal ambitions? Doesn't he ever think about being appointed to the Supreme Court himself?

DELLINGER: Well, a little bit, you know, to be honest. But you know, not much. Because -- being on the Supreme Court's like being hit by lightning. It either happens to you or it doesn't, and you know, I go jogging in the rain 'cause I don't think I'm going to get hit by lightning.

TOTENBERG: As Dellinger knows well, however, the job he holds now is a stormy one -- stormy because of the SG's unique relationship with the president and with the Supreme Court.

SIEGEL: In a moment, the questions of loyalty faced by the solicitor general, loyalty to the president he's serving, and to the Constitution and the court, when Nina Totenberg's report continues.

LINDA WERTHEIMER, HOST: This is ALL THINGS CONSIDERED. I'm Linda Wertheimer. ROBERT SIEGEL, HOST: And I'm Robert Siegel.

The Solicitor General of the United States is like no other lawyer who goes before the Supreme Court. He's supposed to be independent and to have a special relationship with the court. Some even refer to him as the "10th justice." Yet, he's appointed by the president and he represents the administration in power.

In part two of her report, Nina Totenberg looks at the relationship between the solicitor general and the White House.

NINA TOTENBERG, NPR REPORTER: The day is May 27. The solicitor general, Walter Dellinger, doesn't know it yet, but in less than an hour, the Supreme Court will tell the world that it has ruled against President Clinton unanimously in the Paula Jones Case.

We are in the car on our way to the court, and Dellinger is preoccupied with the argument he will be making today in defense of the line-item veto.

SOUNDBITE OF A CAR DRIVING

Have you talked to the president about this bill?

WALTER DELLINGER, SOLICITOR GENERAL OF THE UNITED STATES: No.

TOTENBERG: Is he interested in this stuff?

DELLINGER: Yeah. But you know, presidents are busy.

TOTENBERG: Presidents are busy, but not too busy to know or care about Supreme Court cases that will affect their political futures and the way they will be able to govern.

And so it was that President Eisenhower, not a lawyer, personally and in his own hand, wrote language into his solicitor general's brief before it was filed in the famous Brown versus the Board of Education school segregation case. That, of course, was unusual, but presidents care what their solicitors general do.

Sometimes the relationship between the SG and the president is close and personal. President Kennedy, for example, knew and trusted Harvard Law Professor Archibald Cox, whom he appointed solicitor general. Still, all was not sweetness and light between Cox and the Kennedys. Most notably in the landmark reapportionment case when Cox initially refused to make the argument that the Constitution requires one person/one vote equality.

ARCHIBALD COX, FORMER SOLICITOR GENERAL OF THE UNITED STATES: (Unintelligible) head to head struggle as it were.

TOTENBERG: Cox now believes he was wrong to resist, and in the end he deferred, more or less, to the president's wishes. As did Robert Bork when he wanted to challenge the Boston busing decree in 1974.

ROBERT BORK, FORMER SOLICITOR GENERAL OF THE UNITED STATES: We wound up in the Oval Office with the president, but I knew that was one that was not -- those were generally alone. That was an administration decision.

TOTENBERG: In the end, President Ford decided not to oppose the Boston busing plan.

The conflict in the Reagan administration was more difficult, according to then-solicitor general Rex Lee (ph). Lee found himself constantly at odds with hardliners in the White House who wanted him to argue conservative positions that Lee, himself a conservative, felt could not win in the Supreme Court -- positions contrary to long- settled law.

Lee, now deceased, talked about the clash in a 1985 NPR interview.

REX LEE, FORMER SOLICITOR GENERAL OF THE UNITED STATES: For me to assert it in a solicitors general's brief, would not only mean that I would lose that case, but it would also seriously impede my overall effectiveness with the court, not only in that case, but in other cases. Now when you come to issues like that, it's simply a question of: do you want to blow the bugle or do you want to win the war?

TOTENBERG: Lee's successor, Charles Freed (ph), argued more fervently for the Reagan administration's agenda -- so fervently that some of his career deputies quit. But Freed, too, resisted some of the positions that administration hardliners wanted him to take.

CHARLES FREED, FORMER SOLICITOR GENERAL OF THE UNITED STATES: This is politics. These are things which people care about deeply. And so, they're going to struggle. They're going to fight.

They're going to fight hard. They're going to make it unpleasant for people who want to do the opposite thing, and sort of try to urge the attorney general to make it unpleasant for me. I understand that, but I don't think that's unusual.

TOTENBERG: Did you ever wake up in the middle of the night noticing that you had a stiletto in the back of your frame.

FREED: Yeah, once or twice, once or twice -- sure.

TOTENBERG: So in the last analysis, to whom does the solicitor general owe his loyalty: to the president he's serving and his agenda? Or to the law, the court, and the Constitution? Walter Dellinger.

DELLINGER: I think you can't tolerate this job unless you can live with ambiguity about one's role, because you have to believe really contradictory things.

Client is the United States, and therefore I think what you have to do is to try to persuade a president and those who work for a president and an attorney general that the positions that you're going to espouse in the Supreme Court have in mind the long-range interests of the United States and they ought to go along with that.

TOTENBERG: There are, however, some famous cases in which the solicitor general did not succeed in persuading the president, and simply ended up refusing to sign the government's brief or argue its case.

Perhaps the most famous refusal of modern times came during the McCarthy era in the Eisenhower administration, when Solicitor General Simon Sobilov (ph) refused to defend the government system of stripping government employees of their jobs based on anonymous and untested accusations.

The case was argued instead by a little-known Justice Department official named Warren Burger. He lost, but when the judicial seat long-promised to Sobilov opened up, Burger got it instead and later was named Chief Justice of the United States.

Because of the solicitor general's unique relationship with the Supreme Court, many of Dellinger's predecessors have tried to insulate the office from outside influences. But cloistering is not Walter Dellinger's style. No issue better illustrated that than the doctor- assisted suicide cases this year.

DELLINGER: And I worried a lot about why it was that I was the one that was supposed to or had to decide among all of those choices, so on cases like that, I talked to lots of people and got their views.

TOTENBERG: He met with constitutional scholars, interest groups, lawyers involved on both sides of the case. And he read the deeply personal letters that many citizens sent to the office, knowing that the SG was in the process of deciding whether to enter the case at all on behalf of the federal government, and on which side.

DELLINGER: I sat down with Janet Reno, and wanted to know what she thought about the issue. She'd watched her mother suffer. I'd watched my mother suffer. These are really tough questions.

TOTENBERG: The Supreme Court term is finished now. Dellinger looks back with some satisfaction, particularly at the right to doctor-assisted suicide cases in which the justices essentially embraced the position he advanced, upholding for now state bans on doctor-assisted suicide.

DELLINGER: I thought it was the best moment in the court in a long time, not just this year.

TOTENBERG: And Dellinger is most unhappy about the court's decision this term striking down the Brady gun control bill.

DELLINGER: That is certainly one time this term when I wish I had done a better job of going back to basics. It was our job to attempt to persuade a majority of the court that the framers of the Constitution had a vision of the role and responsibilities of the national government, and we failed to do that.

TOTENBERG: There were other losses for the solicitor general this term as well. He defended the first law imposing censorship on the Internet to protect children, and he lost. He defended the Religious Freedom Restoration Act, a law passed by overwhelming margins to make it more difficult for states to impose burdens on religious practice.

And he lost the Paula Jones case in which the court unanimously rejected the president's argument that he is temporarily immune from civil lawsuits during his time in office.

On the day that Dellinger lost the case, he repaired to the solicitor general's private office at the Supreme Court, where we were waiting to quiz him.

DELLINGER: You would prefer to prevail, but really I've kept it firmly in my mind: my job is to present the government's case, not to decide these difficult issues. That's their job, and I did my job back in January when we finished arguing the case, and then it's their turn to do their job and they did it.

TOTENBERG: Acting Solicitor General Walter Dellinger.

I'm Nina Totenberg in Washington.


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