Progressive judicial group to Biden: Pick a Black woman for solicitor general

Fallon criticized Katyal, a partner at Hogan Lovells who served as acting solicitor general during the Obama administration, for representing Nestlé in oral arguments before the Supreme Court on Tuesday. The case revolves around whether Nestlé and Cargill should be held responsible for their African suppliers allegedly using child slaves.

Fallon also faulted Frederick, a partner at Kellogg Hansen Todd Figel & Frederick who served in the solicitor general’s office during the Clinton administration, for filing a Supreme Court brief last month on behalf of BP, Chevron, ExxonMobil and other oil companies in a climate change case.

“The Biden administration’s top lawyer should be someone who isn’t cozying up to those types of special interests,” he said.

And he went after all three lawyers for defending Trump’s Supreme Court picks — Neil Gorsuch in Katyal and Frederick’s case, Brett Kavanaugh in Blatt’s — and giving them crucial cover from Democrats during the battles over their nominations.

Blatt, who spent more than a decade working in the solicitor general’s office and is now the chair of Williams & Connolly’s Supreme Court and appellate practice, declined to comment. So did Katyal and Frederick.

Fallon, a former Justice Department spokesperson during the Obama administration and aide to Senate Minority Leader Chuck Schumer, started Demand Justice in 2018 to counter the influence of conservative legal advocacy groups such as the Judicial Crisis Network. The group has pressed Democrats to vote against Trump’s judicial nominees and graded them on their records. Fewer than half of Democratic senators received As or Bs — and Schumer wasn’t among them.

The group’s aggressive tactics — such as running ads criticizing Sen. Chris Coons (D-Del.) for voting for some of Trump’s judicial nominees — have irritated some Democratic senators. Fallon defended the ads, saying Coons had nothing to worry about it if he was proud of his record.

Once Trump leaves office, Demand Justice will shift to pressing Biden to appoint “the most progressive judges — with more professionally diverse backgrounds than we saw from Clinton and Obama judges — and fighting for their confirmation,” Fallon wrote in an email to POLITICO. The group will also continue its work to persuade Democratic voters to make judges and the courts a priority and to build progressive judicial infrastructure in the states.

Demand Justice suggested seven Black women whom Biden could tap as solicitor general, including Leondra Kruger, who served in the solicitor general’s office during the Obama administration and is now a California Supreme Court justice; Sherrilyn Ifill, who leads the NAACP Legal Defense Fund; and one of Ifill’s colleagues at the Legal Defense Fund, Janai Nelson.

The solicitor general post has been a stepping stone to the Supreme Court in the past.

President Lyndon Johnson tapped Thurgood Marshall as his solicitor general in 1965 before nominating him as a Supreme Court justice two years later. He was the first Black American to serve in either role. President Barack Obama nominated Elena Kagan, the only woman to serve as solicitor general, to the Supreme Court a year after tapping her as solicitor general.

Jeff Hauser, the director of the Revolving Door Project and a thorn in Biden’s side on executive branch nominations, said he would prefer a lawyer in the mold of Kruger or Ifill become solicitor general rather than a lawyer from a big firm.

“It would be great to return to a world where the NAACP Legal Defense Fund is a way to move up the ranks and eventually make it to the Supreme Court like Thurgood Marshall did,” Hauser said.