Vol. 3 No. 6 (June, 1993) pp. 54-55
THE SOLICITOR GENERAL: THE POLITICS OF LAW by Rebecca Mae
Salokar. Philadelphia: Temple University Press, 1992. 235 pp.
$39.95.
Reviewed by Katy J. Harriger, Department of Politics, Wake Forest
University.
Rebecca Mae Salokar's THE SOLICITOR GENERAL: THE POLITICS OF LAW
fills an important gap in the literature on constitutional
lawmaking. Her study considers the role of the solicitor general
as "respected adviser" to the president and
"gatekeeper" (p. 1) for the Supreme Court. As her
subtitle implies, her research demonstrates the way in which
executive branch politics influences the work of the solicitor
general and of the Court.
Prior to Salokar's work, the literature on the solicitor general
consisted primarily of studies examining the use of amicus briefs
and a controversial work by Lincoln Caplan entitled THE TENTH
JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW (1987).
Caplan's book garnered much publicity because of his thesis that
the Reagan administration had politicized unduly the formerly
independent office of solicitor general by lobbying the Court to
overturn past precedent on issues like abortion and school
prayer. Salokar's book lacks some of the richness of narrative
that is found in Caplan's work, but she makes up for that with a
more empirically sophisticated assessment of the office.
Salokar considers the solicitor general as a "strategic
political actor", examining "the conditions and cases
in which solicitors general make decisions on behalf of their
client, the government of the United States" (p. 7). She
begins with a descriptive overview of the office, noting its
historical development and the responsibilities of the office,
and providing data on its litigation load during the period from
1959-1989. During this period the government was a party in 58.8%
of all cases granted the opportunity for oral argument before the
Court and in 48.5% of all cases decided on the merits. The
solicitor general's success rate in petitions for certiorari was
69.78% compared to a 4.9% success rate for private petitioners.
This remarkable success makes the solicitor general "the
definitive Repeat Player" (pp. 30- 31). Salokar attributes
this success to " a select staff, a tradition-bound process,
and a political appointee who is sensitive to the institutional
needs of both the administration he serves and the court in which
he appears" (p. 32).
Chapter 2 examines the process by which solicitors general are
selected. Consideration of the selection process between 1959 and
1986 provides evidence to refute Caplan's assumptions about prior
independence among these presidential appointees. The selection
of a new solicitor general is based on the nominee's ideological
compatibility with the president. Thus, Salokar concludes, this
lawyer for the government "is no more independent than the
secretary of transportation, the attorney general, or any other
political appointee."(p. 34) The solicitors general appear
independent because presidents pick people whom they can
"allow to be independent" (p. 55).
While Salokar provides ample evidence to refute Caplan's rather
naive belief in the past "independence" of solicitors
general, she has problems of her own in defining what she means
by "politics" and "independence". There is
politics and then there's "politics" one might say.
Clearly, appointment by the president and service at the will of
the president makes the solicitor general a "political"
actor in the best sense of the word. But excessive partisanship
that interferes with the traditional relationship between the
solicitor general and the Court may be something altogether
different. While Caplan clearly goes too far in ignoring past
evidence of political influences, Salokar seems to overstate her
case against independence. The "tradition-bound"
process of decision making, the relationship with the Supreme
Court, the occasional refusal to sign government briefs that the
solicitor general disagrees with are all evidence of informal
norms of independence that she acknowledges in later chapters.
Perhaps "interdependence" is a better word to describe
the result of the "bramblebush" of external
relationships that Salokar describes in
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Chapter 3 as influencing the decisions of the solicitor general.
Chapter 4 provides extensive analysis of the cases filed by the
government between 1959 and 1986. Salokar constructed two data
sets for this research. One is based on the ANNUAL REPORTS of the
attorneys general from 1960-1985 and the other includes all cases
in which the government participated (as a party or amicus)
decided by the Supreme Court on the merits or with a written
decision from 1959-1986. These data allow a far richer analysis
of the solicitors general work than we have seen heretofore. In
addition to considering the success of the office over time in
cases where the government is the petitioner, the respondent, or
acting as a friend of the court, Salokar provides a fascinating
case study of individual rights cases. She finds that when the
government is a respondent in these cases, it defends executive
prerogatives regardless of the party in the White House. Partisan
differences do show up in decisions to seek review and in the
filing of amicus briefs. During the years of her study the more
liberal court handed the government more defeats than are the
norm in individual rights cases where it was the respondent. Her
study does not measure the effects of the new, more conservative
court but her findings suggest fertile ground for further
research.
Salokar concludes with a general discussion of "the
balancing act" that the solicitor general must perform in
the American political system. Here she more clearly recognizes
that the relationship between the solicitor general and the Court
is "established on mutual need and interdependence "
(p. 179). She also argues that her research supports the earlier
arguments of Robert Scigliano (THE SUPREME COURT AND THE
PRESIDENCY, 1971) about the compatibility of the executive and
judicial branches, and of Theodore Lowi 's work on the rise of
the administrative state. "As the executive increasingly
petitions the Court for review of its problems," she writes,
"the judicial focus must necessarily shift to issues of
governmental power and the interpretation of regulations rather
than relationships between individuals." (p. 177). This
closing discussion is interesting but would have been better
placed at the start of the book and more effectively woven into
the other chapters. As it is, it comes almost as an afterthought.
Salokar's book provides much needed information about the process
by which the solicitor general represents the interests of the
executive branch before the Supreme Court. It is a timely and
well researched book that should be of great interest to students
of the federal legal process and executive politics.
Copyright 1993