For Acting Solicitor General, “continuity” is the guiding principle
on Jul 6, 2016 at 4:26 pm
For the past three years, Ian Gershengorn has been in the Office of the Solicitor General working as Don Verrilli’s principal deputy. Now, he is leading the office himself.
Gershengorn took over as Acting Solicitor General on June 25. In that capacity, he will represent the United States before the Supreme Court for the next few months.
“My approach is more continuity than anything else,” says Gershengorn. “Don ran the office in a way that I think was really in the best traditions of the office and most conducive for putting forth the effective arguments in Court.”
As the Principal Deputy Solicitor General, Gershengorn made ten appearances at the Court, with the Justices siding with his views more often than not.
During the Term that just ended, Gershengorn argued in support of Texas in Evenwel v. Abbott, defending the use of total population as a measure for carving out state legislative districts. Last year, Gershengorn successfully argued on behalf of the Equal Employment Opportunity Commission, challenging Abercrombie & Fitch’s rejection of a Muslim woman who applied for a job while wearing a headscarf. Shortly after arriving in the Office of the Solicitor General, he also participated in a trio of First Amendment cases. In Town of Greece v. Galloway, the Court agreed with the town and Gershengorn that opening prayers at legislative meetings do not impermissibly favor religion, so long as the prayers are not discriminatory or coercive. His view also prevailed in Lane v. Franks, a public employee speech case. However, he was on the losing side in McCullen v. Coakley, in which the Court struck down a buffer zone restricting protests around abortion clinics.
Before joining the Solicitor General’s office, Gershengorn directed the Justice Department’s federal programs branch, where he defended the Affordable Care Act against challenges from the states. The work involved a veritable litigation roadshow that went from Florida to Michigan.
Gershengorn believes his experience leading that effort will help him in the Office of the Solicitor General.
“There was a similar process of working with the clients to develop the legal argument and figuring out what the clients throughout the government really need and are looking for in their lawyers,” says Gershengorn. “So, I think I bring both a continuity within the office, but also a continuity within the department and in the administration.”
Gershengorn has also spent much of his career in private practice, with the bulk of it alongside his predecessor.
“I recruited him from Harvard when he was a summer associate,” says Verrilli. “I’ve had my claws into that guy for a quarter century now.”
Verrilli and Gershengorn spent a dozen years together at Jenner & Block, before each accepted separate legal posts in the Obama administration. They won a major death penalty victory together in Wiggins v. Smith, in which the Supreme Court ultimately spelled out what qualifies as “effective counsel” in capital cases.
“You can just go down the list of most of the big things I did at Jenner & Block, and Ian was there,” says Verrilli. “Most of the reason we’ve been successful is Ian has been figuring out what we should be arguing.
At Jenner & Block, Gershengorn was involved in the firm’s appellate and communications practice. Managing partner David DeBruin says that Gershengorn’s work made “a particular difference in cases involving Indian nations and First Amendment rights.” While at Jenner, Gershengorn made his first appearance before the Supreme Court, arguing (unsuccessfully) that the application of a state tax to fuel received by a non-Indian distributor, but then delivered to a gas station on tribal land, violated the tribe’s sovereignty.
Going into next Term, the federal government is a party in seven of the twenty-nine cases that have been granted and will participate as a “friend of the Court” in at least ten more. The cases present questions ranging from the extent of the president’s appointment powers and the rules affecting children born overseas whose fathers are U.S. citizens to jurisdiction over assets in cases involving foreign entities and foreign governments.
Jamie Gorelick, a former deputy attorney general in the Clinton administration, says that Gershengorn showed an aptitude for managing this kind of diverse portfolio when he worked as her special assistant early in his career.
“He was a jack of all trades. Mostly on the civil side to be sure, but he handled everything from antitrust to tax to environmental issues,” says Gorelick. “He is a man of tremendous breadth.”
Gershengorn comes into the position at an unusual time, with the Court missing its ninth Justice. While the Solicitor General is sometimes dubbed the “tenth Justice” for the level of influence he has with the Court, the Solicitor General can only try to steer the Court away from ties — not break them. Gershengorn says he does not expect the vacancy to have a substantive effect on the office’s advocacy.
“We’re not worried about the politics of the outside. We’re not worried about if it’s eight or nine members,” says Gershengorn. “What we’re worried about is presenting the arguments as effectively as we can independently of those things.”
With Congress controlled by Republicans who have regularly opposed Obama administration nominees, Democratic nominees, the White House may leave Gershengorn in an acting position rather than push for a confirmation fight during the final months of President Obama’s term. Gershengorn says he is not in a position to comment about the prospect of a nomination.
“I’m focused on doing the job that’s here,” says Gershengorn.
Still, Gershengorn will have the full authority of the position while in the acting role.
“He deserves an opportunity to lead the office, and be the acting Solicitor General,” says Verrilli. “So, it’s a good thing.”
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in Lane v. Franks.]