With no judicial record, Elena Kagan's tenure as Solicitor General takes on greater importance as the Senate considers her nomination to the Supreme Court.
One must be careful not to read too much into SG briefs, though. The SG is an advocate, and an advocate's job is to make the best case for the client's position. The client decides what the goals of representation are; the lawyer only advises on that point. The SG has more say on what position to take than in the usual attorney-client relationship, but even so we can not lightly assume that every decision made is the one she would have made if unfettered.
So, if the court grants certiorari on the petition of a federal defendant, the SG almost always defends the conviction. The federal prosecutions don't tell us that much.
The SG also appears frequently as amicus curiae in cases from the states. Here the SG has far more leeway. The SG can just pass on these cases or can enter them. Most often, the SG enters to prevent a precedent that will cause problems for federal prosecutions.
As noted here, SG Kagan failed to argue against a bright-line rule against LWOP for all juveniles in nonhomicide cases, even though federal judgments were at stake. Are there any other curious omissions?
Berghuis v. Smith involved a criminal procedure issue that arises in federal and state cases alike -- how you determine whether a jury selection process complies with the "fair cross-section requirement" of the Sixth Amendment. That would seem to be a prime candidate for an SG amicus. But there wasn't one.
The SG did not file in any of the capital cases. In Wood v. Allen and Beard v. Kindler, one can make a good case that the issues only arise in state cases, so there is a diminished federal interest. That case is harder to make for Smith v. Spisak, though. An expansive interpretation of the Mills rule regarding instructing juries on mitigating factors can have an impact on federal death penalty prosecutions as well.
One must be careful not to read too much into SG briefs, though. The SG is an advocate, and an advocate's job is to make the best case for the client's position. The client decides what the goals of representation are; the lawyer only advises on that point. The SG has more say on what position to take than in the usual attorney-client relationship, but even so we can not lightly assume that every decision made is the one she would have made if unfettered.
So, if the court grants certiorari on the petition of a federal defendant, the SG almost always defends the conviction. The federal prosecutions don't tell us that much.
The SG also appears frequently as amicus curiae in cases from the states. Here the SG has far more leeway. The SG can just pass on these cases or can enter them. Most often, the SG enters to prevent a precedent that will cause problems for federal prosecutions.
As noted here, SG Kagan failed to argue against a bright-line rule against LWOP for all juveniles in nonhomicide cases, even though federal judgments were at stake. Are there any other curious omissions?
Berghuis v. Smith involved a criminal procedure issue that arises in federal and state cases alike -- how you determine whether a jury selection process complies with the "fair cross-section requirement" of the Sixth Amendment. That would seem to be a prime candidate for an SG amicus. But there wasn't one.
The SG did not file in any of the capital cases. In Wood v. Allen and Beard v. Kindler, one can make a good case that the issues only arise in state cases, so there is a diminished federal interest. That case is harder to make for Smith v. Spisak, though. An expansive interpretation of the Mills rule regarding instructing juries on mitigating factors can have an impact on federal death penalty prosecutions as well.
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