Vol. 16 No. 4 (April, 2006), pp.299-302

 

LEARNED IN THE LAW AND POLITICS: THE OFFICE OF THE SOLICITOR GENERAL, by Peter N. Ubertaccio, III.  New York: LFB Scholarly Publishing, 2005. 224pp. Cloth $65.00.  ISBN: 1-59332-071-X.

 

Reviewed by Rebecca Mae Salokar, Department of Political Science, Florida International University.  Salokar [at] fiu.edu

 

LEARNED IN THE LAW AND POLITICS is a recent contribution to the existing scholarship on the Office of the Solicitor General (OSG), the legal office that represents the executive branch before the Supreme Court.  As his centerpiece, author Peter Ubertaccio adopts the “law and/or politics” theme that has coursed this literature since Robert Scigliano’s explication of the multi-faceted relationship between the Supreme Court and the presidency (1971).  Ubertaccio’s direction is different in that he presents an historical overview of both the office’s development and the personal politics of the men who have been appointed to serve as solicitors general.  He relies largely on past scholarship and some archival research.  Ubertaccio’s conclusions, however, reflect the general consensus of the scholarly community that the OSG is both unique and powerful in its position astride two branches of government.

 

Ubertaccio posits several themes in his opening pages.  One is that the OSG “is the preeminent institutional link between presidents and law”(p.x); few of us in the field would disagree.  Second, he suggests that the office “has emerged as a primary tool of executive prerogative” (p.2).  Boldly, Ubertaccio also states that the work of the OSG is “the most effective means for presidents to link their reform aspirations and the activities of the federal government to enduring constitutional and political values” in the modern era (p.6).  To support his argument, he examines the institutional development and work of the OSG over four eras—from its inception in 1870 to the end of the nineteenth century, the progressive and New Deal eras, and the Reagan administration.

 

Chapter One provides an overview of the text and a cursory description of the legislative history and contemporary work of the OSG.  Apparent in this chapter is Ubertaccio’s keen interest in the politics of presidential power and leadership, the root of his research inquiry.  One of his discussion threads examines the literature on presidential power and political change, pointing out the limits of reconstruction and realignment theory while suggesting that the OSG’s importance is at the “cross-section of politics and law and the ability of presidents to exercise prerogative regarding the law” (p.6).  The chapter concludes with an argument that while the classical liberal thinkers and the Founders envisioned an executive that was “somewhat above the law” (p.12), modern executive power in the United States has become constrained by the rule of law and the contemporary notion that no one is above the law.

 

The next two chapters examine the early history of the Office of the Attorney [*300] General, and the need for a Department of Justice (DOJ) and for a litigator in the form of the solicitor general, and the development of that office from 1870 into the 1920s.  Chapter Two is primarily devoted to the tenures of the first two solicitors, Benjamin Bristow and Samuel Phillips, and is replete with engaging historical anecdotes designed to point out the administrative difficulties of the early years, the standard of appointing distinguished lawyers who also had close ties to their political parties, and their early advocacy roles.  In Chapter Three, Ubertaccio describes the impact of progressive era reforms on the organization and professionalization of the DOJ under Presidents Theodore Roosevelt and William H. Taft.  The tenure of Solicitor General John Davis during the Wilson administration rounds out the chapter.

 

Chapters Four and Five focus on the New Deal era and its impact on the OSG into the 1950s.  Tracing the New Deal cases that went before the Justices and weaving in stories of the five solicitors who served during the Roosevelt administration, Ubertaccio notes the development of a closer relationship between the OSG and the President, the organizational “learning” that occurs during this time, and a public advocacy role for the solicitor general that extended beyond the confines of the courtroom.  The author also argues that New Deal liberalism and the concomitant rise in legal professionalism and judicial activism meant that the executive branch lost some of its ability “to interpret the law and Constitution” and saw an increase in its duty to “enforce the law and severely affected the ability of future presidents to articulate a (sic) lead political regime change in the United States” (p.161).

 

The final historical chapter highlights the Reagan administration and begins with a rehash of an old issue, the debate over whether the OSG is (or ought to be) political or apolitical in its legal work.  Ubertaccio then goes on to describe the background politics of the BAKKE and BOB JONES cases, two instances in which the Carter and Reagan administrations attempted to manage directly the arguments made by the OSG.  The thrust of the chapter suggests that the Reagan solicitors were not more political than their predecessors.  Rather, due to external criticism and a more constrained view of the president’s ability to interpret the law, Rex Lee and Charles Fried were less successful in defending “presidential prerogative regarding the law and Constitution” than their New Deal counterparts (p.191). The concluding chapter returns to the theme of the OSG as a primary tool of executive prerogative and summarizes the previous chapters.

 

LEARNED IN THE LAW AND POLITICS is an ambitious effort that ultimately falls short in persuading the reader that the OSG is the linchpin for executive-led regime change.  While the OSG has been effective in seeking policy preferences and protecting or expanding executive power, to suggest that it is “the most effective” ignores the success of legislative strategies in a time of unified government, reforms in periods of crisis management, or the impact of membership changes on the U.S. Supreme Court. Ubertaccio’s [*301] discussion of OSG activities’ during the New Deal era certainly portrays an office that was fully engaged in efforts to transform the law, but this narrow view ignores other avenues of policy work (like legislative initiatives that went unchallenged) designed to implement New Deal reforms.  But by his own admission, the experiences of the Reagan administration point out the constraints that current solicitors general face.

 

Given the wealth of scholarly research on the OSG since journalist Lincoln Caplan published his critique of the Reagan administration in 1987, it would seem that the debate over whether the solicitor general is or ought to be a political actor should have been put to rest.  Regardless of party, administrations use this politically appointed lawyer to advance or protect preferred policy positions and executive power.  Yet, Ubertaccio attempts to revive the law or politics debate here and does so by selectively focusing on particular administrations while glossing over others. Opening the book with a critique of the Reagan administration by John Dean (of the Nixon administration) does little to support the merits of a debate that is now rooted largely in the rhetoric of partisans and former office-holders.

 

The value of LEARNED IN THE LAW AND POLITICS is found in the rich historical anecdotes that the author has gathered and the primary sources he uses to tell his story.  Ubertaccio also brings the broad scholarly literature on the Department of Justice into his narrative and ties it into the administrative development of the OSG.  The chapters on the early OSG are a special contribution to existing research on the office and the bibliography provides a good resource for researchers.

 

Regrettably, I must note the poor editorial quality of this work.  First, the book suffers from the dilemma of being organized temporally, a style that is difficult for even the most experienced writer.  On the editorial side, it would have benefited from a serious culling of material to sharpen the thematic focus.  Most frustrating are the number of grammatical and typographical errors that appear throughout and prove to be significant distractions to the reader.  Whether this was the result of a rush to publication or of accepting a dissertation with minimal editorial review, the lack of careful presentation detracts from the author’s efforts.  In addition, the index is thin, and I detected errors even where there were entries to the topic or name I sought.

 

REFERENCES:

Caplan, Lincoln.  1987.  THE TENTH JUSTICE: THE SOLICITOR GENERAL AND THE RULE OF LAW.  New York: Alfred A. Knopf.

 

Scigliano, Robert.  1971. THE SUPREME COURT AND THE PRESIDENCY.  Cambridge:  Harvard University Press.

 

CASE REFERENCES:

BOB JONES UNIVERSITY v. UNITED STATES, 461 U.S. 574 (1983). [*302]

 

UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).

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© Copyright 2006 by the author, Rebecca Mae Salokar