I am joined by my colleague paul clement its good to see you. Likewise it is good to see you. We served as Solicitor Generals Office during past transition so we should probably start by digging in a little bit what is happening on that front and how this transition might be different than past transitions. Maybe we will talk about the specific cases that could be impacted by the change in the administration. And given there is another impeachment trial about to begin maybe we should talk about thatouri also. Would you mind introducing yourself to the audience . I would be happy to. I will spare you the biography and just talk about two things that are relevant for todays presentation. First is the georgetown connection both m eo and undergrad and somebody who has been teaching at the law school since the clinton impeachment thats my first started teaching separation ofol power at the law school so that affiliation runs deep and i am delighted to be here. The second aspect of my bio that r is relevant my service in the Solicitor Generals Office i spent seven years all during the Bush Administration bush 43. And most relevantly for todays discussion i was there for almost the beginning i came into the office february 2001. I was in the office before because it took a while to get confirm so definitely saw from the inside what the transition look like from the Clinton Administration to the Bush Administration. And then over some students that is ancient history but i still think it is relevant to think about whats going on today. I have taught law at georgetown for more than 20 years my second class was called clinton all the legal issues and then everybody stop by the class monica linsky came to the class. Is one of the things i love about georgetown is the ability to bring people in from all over. Not only for seven years platoon a half and in total for writing 43 cases at thewo court i think thats one third of is but it will take me a while to catch up but on januarh with the Obama Administration with day number one tells us are there for the entire transition time and Justice Kagan was not confirmed and so i had to run the process for the first couple of months. So that i will start there. A lot of people think the Justice Department and solicitor generalsne office and those that were the seven and a half years right before i came in and i remember the first 23 calls i got was from the solicitor general at the time for president bush. And then to go for everything and going to barnes noble to find a quiet corner and he walked me through everything for five hours. And i walked in on jerry 20th scared out of my mind but also i had a really good appreciationth for what was going on in theke office because he took the time to walk me through in ay hopeful way. The office only has 16 attorneys and anniversary perception that bush Justice Department was politicized. It is a 16 greatest attorneys of anything because great ones do. That is i think of the Solicitor Generals Office the nonpolitical evenhanded administration and you carry that out. Talk about the sg office and its function . I would be happy to. You have already highlighted the real cadre of career lawyers that are the bread and butter and the lifeblood of the office. If you think of the Solicitor Generals Office like the Justice Department of Legal Counsel it is pretty unique because there are so many career lawyers and so few protocol appointed lawyers in the office. The only people who are political appointees changing from administration to administration as solicitor general and the principalalthpr solicitor general. And i carry over from the administration to administration and that for obvious reasons is part of the reason you typically dont see a lotot of positions change from administration to administration because you already have thev position embraced and then articulated by lawyers who have been in the office years and years. Who do and the Justice Department since the Carter Administration j government tried to do the math on the fly but theres nothing he hasnt seen with this transition so those that Institutional Knowledge in the office. And my philosophy when i was in a position to hire people , is that you really dont want to take politics into account for two reasons. It is contrary to the long traditions of theld office. And a selfinterested view you is in the office and coming up with your position and also think like the whole court analogist clear clerks filling in the ranks in the same way it wouldve been a disservice and the Obama Administrationti. And if anything the office skewed a little left and i beg to differ for obvious reasons. If for any reason was have a pretty good sense of Justice Scalia what he thought so i need more help by people who clerk for those on the left side of the court there are all sorts of reasons you have the balance and then to kick it back to tackle his thoughts that they were different this time around. My experience is very similar and in a way even more dramatic because at the beginning of the Bush Administration serving as the acting solicitor general is the Principal Deputy of the Clinton Administration for were on the road now the state solicitor general for the state of new s york she took that Principal Deputy position after serving a careerr position in the district of new york summit with the unusual Principal Deputy but people thought the transition from one administration to another in the sc office code be sufficiently smooth and not involve those disruptive changes to the extent the new administration said it would make sense somebody who served in one of the two rules of the Previous Administration serve as the acting solicitor general until appointed so i came in i was working as a Principal Deputy with. Now with the new administration the prior relationship with the attorney general that barbara did not have and in a slightly different capacity than typical but not only to have coffee ready with greg i could eat everyday with barbara and working the process through seamlessly and tell ted olson got there in june. And then more generally this is very consistent with neils experience, but it wasnt when we came in the wholesale changes in a large number of cases. To the contrary, im not sure there was a single case he had taken a position in a Supreme Court s brief that we changed in the Supreme Court. There were one or two casesha where the Prior Administration had takenn a position in a lower court believe that had been of the Solicitor Generals Office and the office had a different position. I remember making one or two cases where frankly the word expected. One of the cases i know we took a different position with the Justice Department in the lower courts in the Supreme Court of the university of michigan affirmative action case. If you think about that issue, the word suspect that will change when there is a transition from republican to Democratic Administration or vice versa. But the vast majority ofjo issues even if controversial even if it was writing on a clean slate, if it was not changed and that continuity was preserved which reflects well on the office. Maybe you occurred talk about your experience and to the extent you perceive things to ou different right now . It is 100 percent right not relatively nonpolitical staff and to make it implicit for the audience but its nine people. Its different than any other government jobob because otherwise your audience is the president but now you have ninene people, stable, year after year after year. And what that means your credibility with the institution is the most important asset that you have. And one reason you are not that way and not to depend on to the president is. So that d does, not just in the positions taken but the people that you hire i tend to hire a bit more conservative. I know how i think i need to know how the rest of the court thinks. So i think that is why our hiring practices look like a way that they did. When i came out in january 20th going through after a brief there is anything that will be changing i was Principal Deputy not acting and that is the credit to the un the officean and the credit to the solicitor more generally and to come up a position of the United States. There are two instances that became a public. When was a of the dna testing case which i think was a pretty aggressive i position the department floated there. And then the other was dont ask dont tell. And that was keeping gay folks from serving in the military even though there were deep policy disagreements but that. I think this administration faces something very different. The past Solicitor Generals Office from the Trump Administration and other solicitor general striving this for the white house. And those from the longterm and in the long Term Position if you are the institutionalist and then to serve in the office is a different thing than the question we have because our question is do you deviate from the position and then to deviate from that position which is self deviated from the Justice Department with a very different question when you have an audience the nine people its always difficult to flip a position in the ongoing case in the Trump Administration wounded that now to go back to the original longtermk position and then probably called for you are an institution. So just one example of this and there is a small tiny flaw in the act at this point. The Trump Administration took the view because of that the entire can control, the whole thing had to be struck down that it was unconstitutional. Is not severable from the rest. I cannot think of any solicitor general living or dead that would take the position. And that is a good example you want to change positions from the past administration but l. A. Your position its almost as institutionalist. So i will just stop year. And the situation now is different is different than from a we face so the issue will be the acting solicitor general and to think long and hard. It could b be important and if the office was to change positions in the longterm interest of the office and then to be careful how many they pick in which point. And the ideal scenario would be to change back that was obviously consistent with the longterm use of the interest of the government when. So it looks different in the end and if you change a position and lose. And the Solicitor Generals Office across administration. And then to be sympathetic with a Different Administration position and maybe a little bit tougher for me to make some arguments about the war on terror give and the court that i had. But the Biden Administration will have to realize they are making arguments to reasonably conservative core. In a position they are reimbursing a longterm interest of the government. So in that respect it seems it has been pretty good target. And this is something we could talk for an hour about. It has been the longTerm Position of the Justice Department to defend the constitutionality of statutes with those reasonable arguments can be made and consistent with you said and that is the corollary but if you think the statute is unconstitutional with the longterm tradition the office to have as little of the statute as possible. And that is what the Justice Department does. And it would be great to see that reaffirmed and i also think it is a strong position so the argument is that they change positions that the entire statute doesnt fall. And then i have zero severability with the care act that is just my read of law thats a position that is likely to fail. And with the conditions to be met but this one vicious the timing. But then to file it that took a different position. And that the defendant and filed is fully briefed and argued so if they are going to change their position what is the right way to manifest . That supplemental brief is not something to lately and one complicated fact of the case is the acting solicitor general might be accused because she file their brief and the case in private practice that leads to a complicated question of why it happens then but now interestingly didnt sign any of these briefs i can guess as to why and i suspect you do too. But there is a deep question with the solicitor general and in a case like this to have an acting solicitor general and a career person but the administration is one of the central ideas of healthcare for everyone not wanting to leave the Justice Department position to be struck down. You do have a question how much can the president say to the double acting solicitor general in thatyo area . Is a little bit of the dynamic between the Solicitor Generals Office in the white house. With the Solicitor Generals Office but then to grow nostalgic the folks that work there are incredible and consistent with everything they said the way it operates and end the relationship with the courts and the Supreme Court in particular there is a sense ofns independence not to be entirely independent but separate and apart talk about the tenth justice on the law clerk underscores the Office Facing toward the court if you look at the organizational chart and this is solicitor general works for the attorney general and they were for president. So it is clearly my view in any particular case to say this is the position of the United States and thats open to the solicitor general to either represent that position before the United StatesSupreme Court or to resign. But you dont get to say no. I will countermand the president. I guess but i would say i have no insights everything i know about what was going on the last couple of months i read in the paper so i dont know exactly how things are working in the last administration. Play can speak to my own experience so the president could tell you what your position would be in any given case andl that it didnt happen. And that you were given the space to operate and to use your judgment. But understanding you are doing it as part of the Justice Department and part of the administration. Thats one of these things where precisely because it iss unwritten because you dont see it on the chart is both the amazing thing and also thing you have to work at because of the standpoint it is great the acting solicitor general is in with the office. Anybody who served in the office will have an appreciation for the office. Something the white house does for almost Everything Else some orders of the Ad Department or Something Like that. You dont want that kind of subtle informal kind of way to creep into the offices decisionmaking. Its highly regularized. There is no stove piping or secret conversations. All the different entities write a memo to the solicitor general and how that memo is reviewed by several layers and then to the solicitor general so it is a wonderful way of making decisions. If you have any sort of extraneous phone call job earning stuff like that it throws the whole thing off. Theres a lot of questions from folks about the Supreme Court transition. One more thing before we transition. The other thing important is theres a right way and a wrong way for the new administration to change its position in a way that is ultimately reflected in a Supreme Court. The right way to do it is the undermined concern the new administration has a different policy i and it doesnt like the policy of the last administration it should change the policy and if it changes the policy its f easy for the solicitor general to say we have a newe policy do you need to rename the case and let the lede court consider the new policy for the proof of the policy just isnt there anymore, so the case is mute. Those seem to be the right way to make the policy and i think the danger that can come in and the Solicitor Generals Office he is careful about is someone is trying to change the policy without actually changing the policy. Ordinarily but if you dont it will just go away. The right answer was thats great,gr go tell the secretary f transportation and of the rule goes away, theres plenty to keep me busy. But dont in the guise of having the Solicitor Generals Office make