Rex E. Lee Conference on the Office of the Solicitor General of the United States (2003)

Rex E. Lee Conference on the Office of the Solicitor of the United States* Advocate as Friend: Solicitor General's Stewardship Through the Example of Rex E. Lee I am honored to be part of the first Rex E. Lee Conference on the Office of the Solicitor I feel this way not merely because I presently occupy the position whose role Rex exemplified in so many ways, but also because Rex was my friend-indeed, he was our friend. Rex had what his son Tom has called a sort of 'gift' for friendship,1 gift that, in addition to his extensive and diverse legal talents and experiences, served him well as solicitor It was gift that infused him with civility and respect, that made him colleague and friend not only to those who shared his views on questions of law and politics but also to those who did not.2 I was fortunate to have served with Rex in the Department of Justice when he was solicitor As the head of the Office of Legal Counsel, I worked closely with Rex in formulating the Reagan administration's positions on number of important, complex legal issues. More importantly, we sat next to one another virtually every morning for four years at Attorney William French Smith's daily senior staff meetings (just across the table, I might add, from Smith's chief of staff and future judge and solicitor-general-- to-be, Kenneth Starr). I soon came to marvel at Rex's extraordinary combination of legal talent and human goodness. Now that I have the privilege to serve in the position he filled so well, I appreciate him even more. Tonight, based principally on Rex's example, I want to share with you some thoughts on the place of the solicitor general in the life of our Republic. IMAGE FORMULA31 I. Americans have never spent much time thinking about the solicitor When neighbor once asked Rex's wife, Janet, what her husband did for living, she replied, He's the solicitor general. Gee, said the neighbor, must be great being married to military man!3 relative obscurity to the public of the solicitor general is recurring theme throughout the history of the office. After his first day on the job, William Howard Taft attended dinner party held by friend of his father's and was seated between two ladies who, he learned by glancing at their place-cards, were Mrs. Henry Cabot Lodge and Mrs. John Hay. They likewise had glanced at his place-card but all they read there was The Solicitor General. It was not until the end of the evening that it dawned on Taft that the reason why they had addressed him throughout the dinner as Mr. Solicitor General was that neither of them had the slightest idea [who he was].4 Things have not changed very much over the past 112 years. Judge Bork claims that people still mistake him, to his relief, he asserts, with former Surgeon Everett Koop. Of course, in that case, the beards might have something to do with it. However, while perhaps obscure to the public, the solicitor general is certainly familiar to the Supreme Court and to those who follow its work. Indeed, he is best known for his role as the government's advocate in the Supreme Court. At the petition stage, he must decide, in cases in which the United States is party, whether the government will petition for certiorari, oppose certiorari, acquiesce in certiorari, or confess error. Where the United States is not party, he must decide whether the government will file brief amicus curiae, and he must file an amicus brief when the Court invites him to express his views on case. At the merits stage, the solicitor general is responsible for handling the government's briefing and argument if the United States is party, and for deciding whether the government will participate as amicus curiae in cases in which it is not. And this role represents major portion of the Court's docket. …