Solicitors General

California does and does not have a solicitor general.  The title exists, and the role is ably filled by Manuel Medeiros.  But the role is not the traditional one.  The California Solicitor General's office does not play the same role in California's court system as the U.S. Solicitor General's office plays in the U.S. Supreme Court.

Ambassador Jeff Bleich, former State Bar president (and former U.S. Supreme Court clerk), explained earlier this year at the First Annual Conference on the California Supreme Court: 

"Although California appointed its first Solicitor General a few years ago, it did not set up the office to function like the U.S. Solicitor General's office. In fact, California's office functions much like the system that most other states are abandoning. Currently, California's office has an appellate section chief who specializes in state and federal appeals, but mostly leaves to the assistant district attorney who handled the case below the privilege of arguing the case in the Supreme Court. As a result, California has not formed a small, trained corps of lawyers who are familiar with the Court's procedures and have developed a strong reputation with the Court as a reliable counselor on difficult issues." 

He therefore recommended "pattern[ing] the California Solicitor General's office after that of the U.S. Solicitor General" and "developing a team of advocates . . . to routinely represent the State before the California Supreme Court."

Before California ponders this recommendation, we ought to consider the proposed template.  In a new law review article, "The Solicitor General's Changing Role in Supreme Court Litigation," the authors "examine . . . changes [that] have diminished the Solicitor General’s role at the certiorari stage and expanded it at the merits stage. They find that at the certiorari stage, when the Court is selecting its cases and setting its agenda, the Solicitor General is now seeking certiorari in so few cases—just fifteen per Term—that the Solicitor General is ceding the federal government’s once-substantial influence over the Court’s agenda-setting to more aggressive litigants. At the merits stage, in contrast, the Solicitor General is now participating in over three-quarters of the Court’s cases, and is doing so more frequently as amicus curiae than as a party."

"The authors address concerns that, with this nearly pervasive involvement, the Solicitor General may have become too intrusive in private litigation or too partisan in cases presenting high-profile, socially controversial issues. They find, however, that solicitors general have acted within their proper constitutional role, largely confining involvement as amicus to cases that directly and substantially affect the federal government’s institutional interests."

The authors are a law professor and the Ohio Attorney General -- who was also Ohio's first solicitor general.