Comparing Candidates for the Next United States Solicitor General

Eleven possibilities for the next Solicitor General of the United States.  There are in fact many more possible candidates although the eleven names produced in two articles – one by Tony Mauro of the National Law Journal and another by David Lat, managing editor of Above the Law provide an ample source of talented lawyers who may next hold the post of the federal government’s top attorney.  Lat and Mauro use a variety of criteria to generate their picks generally centering around the candidates’ relationships to members of Trump’s transition team, their previous experience working as government attorney’s within conservative administrations (generally under President George W. Bush), and other practice based characteristics that might make them attractive to the Trump administration.  But of these attorneys who is most qualified for the position? This is not easy to answer although there are several sources of information to shed light on this topic.

First let’s take a look at their legal experience. The characteristics examined for each attorney include 1) where they practice; 2) prior or current governmental attorney service; 3) law school; 4) clerkships; 5) top three most represented clients; 6) and top three federal courts where they litigated most frequently.

1) Links to the Office

Experience in the S.G.’s Office

Miguel Estrada: Estrada is a partner at the firm Gibson, Dunn, and Crutcher. He also held positions litigating for the federal government both as an Assistant U.S. Attorney and in the U.S. Attorney’s Office for the Southern District of New York. Estrada attended Harvard Law, clerked for Judge Kearse of the Second Circuit, and for Justice Kennedy on the United States Supreme Court.

Based on federal dockets since the year 2000, the three clients Estrada has represented the most often are Phillip Morris, British Petroleum, and Aetna Health.  The three federal courts where he has litigated the most cases are the United States Supreme Court, the D.C. Court of Appeals, and the Eleventh Circuit Court of Appeals.

Thomas Hungar: Hungar is currently the General Counsel for the U.S. House of Representatives and was previously a partner at Gibson, Dunn and Crutcher.  Hungar previously held several roles in the Solicitor General’s Office including Deputy Solicitor General (S.G.) and Assistant to the S.G.  He went to Yale Law School, clerked for Judge Kozinski on the Ninth Circuit, and also clerked for Justice Kennedy on the Supreme Court.

Based on federal dockets since the year 2000, the three clients Hungar has represented the most often are British Petroleum, Chevron, and UBS.  The three federal courts where he has litigated the most cases are the United States Supreme Court, the United States District Court for the Eastern District of Louisiana, and the Fifth Circuit Court of Appeals.

Kannon Shanmugam: Shanmugam practices at Williams Connolly. He was an Assistant to the S.G. during the George W. Bush Administration.  Shanmugam went to Harvard Law School, clerked for Judge Luttig of the Fourth Circuit, and for Justice Scalia at the Supreme Court.

Based on federal dockets since the year 2000, the three clients Shanmugam has represented the most often are the pharmaceutical companies Wyeth, Pfizer, and AstraZeneca.  The three federal courts where he has litigated the most cases are the United States Supreme Court, the Second Circuit Court of Appeals, and the Ninth Circuit Court of Appeals.

Ties to the Transition Team

Noel Francisco: Francisco of Jones Day is connected to former Jones Day partner Donald McGahn II who was hired under the Trump Administration as White House counsel.  Francisco held several legal positions within the federal government including Deputy Assistant Attorney General and Associate Counsel to the President. He went to University of Chicago Law and followed the same clerkship path as Shanmugam clerking first for Judge Luttig in the Fourth Circuit and then for Justice Scalia in the Supreme Court.

Based on federal dockets since the year 2000, the three clients Francisco has represented the most often are RJR Reynolds Tobacco, Phillip Morris, and Chevron.  The three federal courts where he has litigated the most cases are the D.C. Court of Appeals, the District Court for D.C., and the United States Supreme Court.

Gregory Katsas: Katsas like Francisco is a partner at Jones Day.  He is also a member of the Trump transition team.   Of the individuals on this list Katsas has served for the most time within the federal government in positions including Deputy Assistant Attorney General for the Civil Rights Division as well as various other positions in the Attorney General’s Office.  He went to Harvard Law and clerked for Judge Becker of the Third Circuit before clerking for Justice Thomas on the Supreme Court

Based on federal dockets since the year 2000, the three clients Katsas has represented the most often are Eric Holder and Michael Mukasey while in the Attorney General’s Office, as well as RJR Reynolds Tobacco.  The three federal courts where he has litigated the most cases are the Second Circuit Court of Appeals, the D.C. Circuit Court of Appeals, and the Fourth Circuit Court of Appeals.

Michael Carvin: Carvin is the third attorney on the list who practices at Jones Day.  Like Katsas he also held several attorney positions within the federal government and specifically within the Attorney General’s Office.  Carvin is the only attorney on the list that did not to clerk at the federal level.  He is a graduate of G.W. Law.

Based on federal dockets since the year 2000, the three clients Carvin has represented the most often are RJR Reynolds Tobacco, the University of Notre Dame, and the Susan B. Anthony List.  The three federal courts where he has litigated the most cases are the United States Supreme Court, the D.C. Circuit Court of Appeals, and the District Court for D.C.

Chrisopher Landau: Landau, a partner at Kirkland & Ellis is linked to former colleague Brian Benczkowski, who was hired on transition team for the U.S. Department of Justice.  Landau attended Harvard Law. He went on to clerk for Justice Thomas while he sat on the D.C. Circuit and then clerked for Justices Thomas and Scalia at the Supreme Court level.

According to federal dockets since the year 2000, the three clients Landau has represented the most often are WR Grace and Co., Daimler AG, and the Ford Motor Co.  The three federal courts where he has litigated the most cases are the United States Supreme Court, the Third Circuit Court of Appeals, and the Ninth Circuit Court of Appeals.

This Supreme Court Term, Landau argued on behalf Jevic Holdings in the oral argument for Czyzewski v. Jevic Holding Corp.

Erin Murphy: Murphy is a partner at Kirkland & Ellis. She was on the team that was recently brought on along with Paul Clement from Bancroft PLLC.  Upon completion of law school at Georgetown, Murphy clerked for Judge Sykes on the Seventh Circuit and for Chief Justice Roberts on the United States Supreme Court. Although Murphy never formally served in a litigation post for the federal government, as a Bristol Fellow in the S.G.’s office she received training similar to that of a U.S. attorney.

According to federal dockets since the year 2000, the three clients Murphy has represented the most often are Alcoa, Sony, and various recording companies including Warner.  The three federal courts where she has litigated most frequently are the United States Supreme Court, the Second Circuit Court of Appeals, and the D.C. Circuit Court of Appeals.

General Recognition Within Circles Tied to the Administration

Helgi Walker: Walker is the third Gibson Dunn partner (or recent partner in the case of Hungar) on the list.  Walker previously worked as Associate White House Counsel. She attended University of Virginia Law School, and clerked for Judge Wilkinson III on the Fourth Circuit before clerking for Justice Thomas on the United States Supreme Court.

According to federal dockets since the year 2000, Walker’s three most frequent clients are Abeam Consulting Korea, CTIA Wireless, and Staples.  The three federal courts where she has litigated most often are the D.C. Circuit Court of Appeals, the Sixth Circuit Court of Appeals, and the Third Circuit Court of Appeals.

Scott Keller: Keller, on the younger end of the spectrum for attorneys on this list, is currently Solicitor General for the state of Texas.  Keller’s quick rise to top appellate ranks is chronicled in this article from Law 360.  Keller worked as Chief Counsel for Senator Ted Cruz before his appointment to Texas’ Solicitor General post.  He attended University of Texas for law before clerking for Judge Kozinski on the Ninth Circuit and Justice Kennedy on the Supreme Court.

According to federal dockets (and not surprisingly), Keller’s most frequent clients have been the State of Texas, Texas Governor Greg Abbott, as well as several other Texas state officials (each for the same number of representations). Perhaps also not surprisingly the three federal courts where Keller has litigated most frequently are the United States Supreme Court, the Fifth Circuit Court of Appeals, and the District Court for the Western District of Texas.

Keller argued this Supreme Court Term on behalf Lorie Davis in the oral arguments in Buck v. Davis and on behalf of the State of Texas in Moore v. Texas.

John Bursch: Bursch heads up his own practice at Bursch Law.  He previously served as Michigan’s Solicitor General.  Bursch went to University of Minnesota for law and went on to clerk for Judge Loken of the Eighth Circuit.

Based on federal dockets from the year 2000, Bursch’s main clients have been the People of Michigan, the State of Michigan, and several Michigan wardens including Mary Berghuis and Millicent Warren.  The three federal courts where he has litigated most frequently are the United States Supreme Court, the Sixth Circuit Court of Appeals, and the District Court for the Eastern District of Michigan.

This Term, Bursch argued on behalf of Star Athletica in Supreme Court oral arguments in Star Athletica v. Varsity Brands.

2) By the Numbers

In terms of aggregation this list includes four Harvard Law grads, three attorneys connected to Gibson Dunn, three to Jones Day, and two to Kirkland & Ellis.  For federal appellate level clerkships, the list includes two prior Kozinski clerks and two former Luttig clerks. At the Supreme Court level, it includes three former clerks for Justices Kennedy, Thomas, and Scalia apiece, and one former Roberts clerk.

To help gauge the candidates federal court experience three additional statistics are used. First the total number of federal court opinions the candidates are listed on according to the dockets.  All charts are ordered by the candidates last names.

OpinionsGenerated.png

A docket search comes up with the most opinions by far for Gregory Katsas.  This is mainly due to his experience litigating for the federal government.  After Katsas comes Bursch and Christopher Landau.  Keller, Walker, and Murphy all are associated with fewer than one hundred federal opinions each.

The next two measures focus on the candidates Supreme Court practice.  First, the number of cases they have orally argued as either a merits party or amicus representative.  The blue bar reflects the number of amicus cases they have argued.

argued

Hungar has orally argued the most cases with twenty-six.  He also has the largest share of amicus cases argued with fourteen.  Next is Estrada with twenty-two arguments, seven of which were amicus.  Shanmugam has the third most with eighteen, six of which were as amicus.

The last figure looks, based on federal dockets, at these attorneys’ total case wins as counsel of record for merits parties in the Supreme Court. It breaks the attorneys’ representations down by those in which they represented the federal government and those cases where they represented other entities (mainly private parties/companies and state governments).

wins

Estrada has the most victories on this list at ten including six representing the federal government and four representing other entities.  Next Bursch and Hungar each have seven wins. Bursch’s were all for non-federal government entities while six of Hungar’s seven were for his representations of the federal government.  Shanmugam follows next with five wins: three for private entities and two for the federal government.

Although it is not easy to designate one of the candidates most qualified there are a few points worth highlighting.  Based on federal government litigation, Katsas, Hungar, Estrada, and Shanmugam appear the most experienced and each with particular areas of success.  Bursch and Keller each have been quite successful as state solicitor generals and have had significant experience litigating in the United States Supreme Court.

Each of these potential candidates is uniquely qualified and the top level decision-makers will have to weigh these qualifications in appointing one of these or other candidates to the position of the next United States Solicitor General.


On Twitter: @AdamSFeldman

With much research assistance from: @SamuelPMorse

Updated 12-13-2016

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