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Biden nominates Prelogar as solicitor general

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Nearly seven months after his inauguration, President Joe Biden announced on Wednesday that he has nominated Elizabeth Prelogar to serve as the U.S. solicitor general, the federal government’s top lawyer at the Supreme Court. Prelogar, who has served as the acting solicitor general since January, is widely respected in the legal community, but the Biden administration took an unusually long time to make the nomination – reportedly because of a dispute between the Department of Justice and the White House over whom to name. If confirmed by the Senate, Prelogar will be only the second woman to hold the job on a permanent basis; the first was now-Justice Elena Kagan, for whom Prelogar clerked.

Prelogar, who has argued at the Supreme Court nine times, has the kind of credentials generally associated with nominees for solicitor general. She graduated from Harvard Law School and went on to clerk for then-Judge (and now Attorney General) Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, followed by clerkships for Justices Ruth Bader Ginsburg and Kagan. She also spent five years, from 2014 to 2019, as an assistant to the U.S. solicitor general, briefing and arguing cases in the Supreme Court.

Some of Prelogar’s time in the solicitor general’s office, however, was spent on loan to the investigation by Special Counsel Robert Mueller into Russian interference in the 2016 election. Prelogar majored in English and Russian at Emory University and was a Fulbright Fellow in St. Petersburg, Russia.

Prelogar has also done two stints in private practice, as an associate at Hogan Lovells and as a partner at Cooley LLP.

The Biden administration’s delay in putting forward a nominee for solicitor general is the longest in recent years. President George W. Bush nominated Ted Olson, his first solicitor general, on Feb. 14, 2001; he was confirmed on May 24, 2001. President Barack Obama nominated Kagan, his first solicitor general, even before Inauguration Day, on Jan. 5, 2009; she was confirmed on March 19, 2009. More recently, Noel Francisco, President Donald Trump’s solicitor general, was – like Prelogar – originally appointed as the principal deputy solicitor general. He served as the acting solicitor general from January through March 2017, when he was officially nominated to be the solicitor general; he was confirmed in September 2017.

Bloomberg Law’s Kimberly Strawbridge Robinson reported on Monday that Biden’s delay was due to a dispute between the DOJ, which supported Prelogar, and the White House, which preferred “a more diverse candidate.” The National Law Journal’s Marcia Coyle and C. Ryan Barber reported in January that the White House offered the solicitor general position to California Supreme Court Justice Leondra Kruger – who would have been the first Black woman to hold the position – but Kruger twice declined the job.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Biden nominates Prelogar as solicitor general, SCOTUSblog (Aug. 11, 2021, 11:25 AM),