Vol. 15 No.1 (January 2005), pp.1-4

BETWEEN LAW & POLITICS: THE SOLICITOR GENERAL AND THE STRUCTURING OF RACE, GENDER, AND REPRODUCTIVE RIGHTS LITIGATION, by Richard L. Pacelle, Jr.  College Station: Texas A&M University Press, 2003. 342pp. Hardback.  $50.00.  ISBN: 1-58544-234-8

Reviewed by John Brigham, Political Science, University of Massachusetts, Amherst.  Email: brigham@polsci.umass.edu

I enjoyed reading, in Richard Pacelle’s book, that Archibald Cox intimidated Robert F. Kennedy. I met Archibald Cox once and was a little intimidated myself. This was after he had been Solicitor General under Kennedy and Johnson. Cox projected a sense that a person of good character could embody the law. When Robert Bork, SG under Richard Nixon, was nominated for a seat on the Supreme Court, Cox refused to comment. Bork had fired Cox from his Special Prosecutor position during the Watergate investigation. The venial nature of that action was part of what gave Cox his stature, but there was also the man himself. Bork, on the other hand, would come to embody a different notion, that men with little character, too willingly serving political masters, are a threat to law and justice.

Pacelle places Cox and Bork within an institutional framework. He helps us to understand the obligations and capacities of the Solicitor General.  He tells us early in the book that “[t]he solicitor general has become, in fact, what the Attorney General is in name” (p.5)—that is, the attorney for the United States. For Pacelle, the SG stands between law and politics because he works between the President and the Supreme Court. This book is an important contribution to scholarship on the federal administration of justice because it takes seriously the interconnections of politics and law. It is also a tragic tale and the findings made me want to have Archibald Cox back.

Pacelle’s idea that the SG stands “between” law and politics, while kind of obvious, is meant to be the beginning of the inquiry. In this sense, with the dichotomy as a place to start, the book offers much that is original. In Public Law scholarship, we have lots of instances where there is law “and” or law “in” politics but this book places an institution in the forefront. The SG is a political appointee, but he and the Office are constrained by law. I like the institutional frame, as it provides a useful context. The institution of the OSG evolves as a function of law and politics. The institution operates in political and legal space. We would not want to conceive of this institution as lines drawn on the ground or the rules of the game. As an institution, the OSG is the game or the play itself, and it is constituted in both law and politics.

This is a big book at 341 pages, and it is a relatively comprehensive treatment of the SG. But Pacelle’s book is not meant to be encyclopedic. Rather, as the title indicates, the book examines the role of the SG in three policy areas important to political science: race, gender, and reproductive rights. And the coverage is modern. The apolitical image of the [*2] Solicitor General is challenged at the outset. There are interviews with SGs Cox and Bork, Drew Days, Walter Dellinger, Charles Fried, Ken Starr, and Seth Waxman, in addition to many assistants. I see Cox and Bork as extremes. Pacelle sees an evolution from an earlier law-bound SG to a more political contemporary institution.

I think the book could have been tightened up a little. All six chapters, three divisions and the title repeat “Solicitor General.” It may be that Pacelle is worried we need repetition in order for this office to come into perspective (or to get the spelling right). The book is written as if it is telling the story of an office that is a bit off the beaten track. This makes it seem like attention to the SG might be a little hard to justify. By comparison to the Supreme Court it may be, but Pacelle makes it clear that the office is important, and he ties his work to those who have gone before. We know some of the stories from the literature, but he presents many that are new.

Regarding the main theme of the relationship between law and politics, the book is written as if, to use the subtitle to the last chapter, law struggles to function “in a sea of politics.” Although the author knows a great deal about an institution that transforms politics into law, I think one limitation of the framework is that the work sometimes employs a view in which politics is dynamic and law is static.  This is most evident in the overall assessments, which constitute the basis of the book. This is where Pacelle says the SG has become more political.

But, there is material in this book that tells the story of two dynamic forces. Pacelle’s institutional framework makes the SG available to the scholar interested in thinking about these things. During the pro-choice Clinton Administration, the SG did not push the Court because the office was not optimistic about outcomes that would advance the right to an abortion. The political forces are well documented, beginning with the post war period. There are also legal ones that range from the precedential value of ROE to the hierarchy that places the Supreme Court at the end of the line in matters of constitutional interpretation. In the gender equality part of the book there is also a wonderful discussion of the strategic choices faced by Deputy SG Paul Bender in his arguments before the Court in the VMI case, concerning single sex military academies. Pacelle notes the initially strategic but ultimately legal need for Bender to moderate his presentation – and drop his argument for strict scrutiny – in order to win over Justice O’Connor. Here the mix of law and politics is less a play of opposites, or even of law tossing about “in a sea of the politics” (p. 259). It is instead nearly a seamless web of opportunity, belief, institution and analysis. The book helps us to see that.

Generally, a broader, more nuanced view is characteristic of Pacelle’s narrative presentation of the conduct of the Office of the Solicitor General than appears in the theoretical framework. For instance, in the discussion of gender equality he notes the importance of statutory interpretation as a limitation on the Court and the SG as well as providing a check when Congress is perceived to have made errors. This field of policy is constituted in law, and it is [*3] an aspect of the institutional life of all the players.

There are delightful subtleties, as when Pacelle says the Supreme Court, with its activism in BROWN and the Due Process revolution, “encouraged the solicitor general to tip the political/legal balance” (p.195). But even here, the bind of an activist and increasingly conservative Supreme Court in Pacelle’s framework is that the SG, being subordinate in law, has little leverage from which to push against that activism. Relatively liberal SGs, for instance, would have trouble claiming authority from which to push the Court because law is seldom allowed to stand outside interests. I think of these situations as calling for an Archibald Cox.

Those of us in the social sciences of law are fond of seeing law as the product of certain governing institutions.  The SG is a key player who is political and is also legal at the same time. Pacelle says the SG is more political than he used to be. But if we see governing institutions as the product of law then law and politics constitute the SG. In this sense,, the SG may be threatened by politics but is not likely at sea. Actors in the Office of the Solicitor General may perceive tension in law and politics, but they are likely more instrumental about law than those of us in the academy need to be. The political may well be their conception of law. We can do better than that, those of us who teach about law to college students. Law is not simply a code or a precedent. It is, more fundamentally, the office itself, the form of action that is an appeal, the setting that is oral argument. Perhaps it is even in the character of someone like Archibald Cox.

The key is really establishing how the office matters and where to place the institution in American public life. One of the SG’s most public moments was on September 11, 2001 when Theodore Olson lost his wife Barbara, a conservative commentator for CNN, on the plane that crashed into the Pentagon. I began this review by thinking about one of the most dramatic moments for the SG in the past, the firing of Archibald Cox.  Before these incidents, and in between, the SG has worked to craft law for the President of the United States in a highly political context that is nevertheless mostly buried in the legal life of executive branch.

Because the office Pacelle describes is not an originator of policy but rather its gatekeeper and spokesperson, recognition of law’s constitutive quality is important. The OSG is not really a hidden neverland “between law and politics,” but is rather a noticeable and recognizable artifact of law and politics. These spaces are constituted by institutional tradition and the ongoing activity that give it life. In this sense, Pacelle’s useful image of the SG depending on the Supreme Court as his stage is apt. Here the SG is as fully constituted by the law as the Court is. Both the SG and the Court are political, but reach this conclusion alone is not very satisfying. Pacelle tells us that the SG has become increasingly political and is more political than the Court. But since it is supposed to advocate, the office has to be more political.  That is its legal function. The Court’s role is to mediate that advocacy.

Casting a shadow over all of this today are the facts of recent federal life that pit the legal agents of the nation against the [*4] liberty and diversity of our lives and life spaces. We see all around us instances where events or interests are said to trump the law. We hear more about emergencies and the inconvenience of law than about the need to sustain it. The United States today is a context where a robust sense of law as constraint embodied in office and action needs to be vigorously defended.

That aspiration leads back to the beginning—to Archibald Cox and to his stature as a professor. In his presentation, Pacelle gives us plenty of material on the way academic power is incorporated into the institution of the SG. Law professors are considered part of the institution; law schools are visited in order to understand an institution that might otherwise seem to exist in Washington, DC. The academy is not simply a source for more information; it is an important part of the institutional life of the Solicitor General. And we are a source of law. In this and many other respects Pacelle’s substantial book gives us a basis for thinking further about how law works in practice and how we can understand it.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

ROE v. WADE, 410 US 113 (1973).

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© Copyright 2005 by the author, John Brigham.