US: Three Indian Americans in solicitor race

Three Indian Americans, led by principal deputy solicitor general Neal Katyal, are among the top five contenders to replace United States Solicitor General Elena Kagan -- nominated by President Barack Obama to the Supreme Court -- if she is confirmed by the Senate in July, highly placed sources told India Abroad.

Besides Katyal, 40, an alumnus of the Yale Law School and former professor at the Georgetown Law School, the other two on the list on President Obama's desk are former New York Solicitor General Preeta Bansal, 45, a Harvard Law School alumna and general counsel and senior policy adviser in the White House Office of Management and Budget, and Sri Srinivasan, 42, a Stanford Law School alumnus and a partner in the top law firm of O'Melveny & Myers, LLP, who has argued 17 cases before the Supreme Court and briefed countless others in the Supreme Court and the lower federal courts on a broad array of legal and constitutional issues, and worked in the Solicitor General's Office from 2002 to 2007 as an assistant to then solicitor general Walt Dellinger.

Srinivasan is also a lecturer at the Harvard Law School where he co-teaches a course on Supreme Court and appellate advocacy.

Rounding off the top five are Donald Verrilli Jr, senior White House counsel who joined the Department of Justice as an associate deputy attorney general in February 2009 and moved to the White House earlier this year, and Christine Gregoire, a Democrat, who is serving her second term as governor of Washington state and worked in the state attorney general's office from 1977 to 1988 and was elected Washington attorney general in 1992 and served nearly 12 years in that position before winning the governorship in 2004.

Katyal, Bansal and Srinivasan have all at one time or the other clerked for Supreme Court justices, with Katyal having clerked for Justice Stephen Breyer, Bansal for Justice John Paul Stevens, and Srinivasan for Justice Sandra Day O'Connor.
This is the first time in the history of the Indian-American immigrant experience that three high-profile attorneys from the community are the top contenders for this number three position in the Department of Justice.

"Just five years ago," said a highly placed source who did not want to be named, "we could have never dreamed about such a scenario"

The source told India Abroad: "It's only in the past decade that Indian Americans have come to the forefront as top-notch litigators and leading public servants in federal and state legal agencies. A couple of decades ago, it was just a handful of Indian Americans who pursued law degrees at the top law schools in the country."

Sources said although the others can't yet be counted out, the choice may come down to Katyal and Verrilli, who are both well known and liked by US Attorney General Eric Holder. Katyal worked for Holder when he was deputy attorney general in the Clinton administration as his national security adviser. Verrilli is a close friend of Holder, it was Verrilli who helped Holder craft the Justice Department new state secrets doctrine guidelines.

Since Kagan was nominated, Katyal has been the acting solicitor general, and May 12, filed the first set of briefs as the acting solicitor general in the Supreme Court. This was the first time that such briefs have been signed by a non-white or an African American in American legal history in the Supreme Court. The first African American to do so was Drew Days, solicitor general in the Clinton administration.

Sources said "the briefs signed by Katyal were major briefs dealing with a case involving torture and extraordinary rendition in a suit that had been filed against former attorney general John Ashcroft (in the Bush administration) and his aides in the Department of Justice."

Ironically, Katyal, an avowed Democrat, was defending the attorney general and attorneys in the Bush administration's Justice Department.

"In the days to come," the sources said, Katyal would "be filing hundreds of briefs in the Supreme Court as acting solicitor general since with her nomination pending, Kagan will be out of everything, except for about five pending cases."

Thus, the sources acknowledged, "For all intents and purposes, till a new solicitor general is named," Katyal is the solicitor general.

Several senior White House officials are expected to back Verrilli, but sources said he's not personally known to Obama while Katyal is "and the President knows his (Katyal's) body of work and his expertise in areas such as constitutional law and also shares a common professional bond since they both taught constitutional law."

Another plus in Katyal's favor, another source noted, is that "he has already been in the job as principal deputy solicitor general for over a year, and traditionally the principal deputy has always become the solicitor general whenever the solicitor general has left during the tenure of a particular administration. In the last 20 years, every principal deputy solicitor general has become the solicitor general, except of course when there's a new election. When there's an election, the principal deputy solicitor general has got to leave too, because it's also a political appointment."

The source pointed out that "in the Bush administration, the two solicitor generals left and each time they elevated the principal deputy to the solicitor general post. So, Neal's got a lot going for him there's no doubt about it."

But the sources acknowledged that Srinivasan, equally brilliant, also was being "seriously considered he's really, really good." But the fact that he served in the Bush administration, though it was not a political appointment, "may not serve him well," one source said.

The sources did not rule Bansal a Harvard Law School colleague of Obama's   out either and recalled that she was in the running for the solicitor general position earlier, though Obama went with Kagan, a former Harvard Law School dean.

Akhil Reed Amar, Sterling professor of law and political science, Yale Law School, considered one of the most influential legal thinkers of modern times in the United States, strongly believes that his former student Neal Katyal  "should be the obvious and natural choice," to replace US Solicitor General Elena Kagan, nominated to the Supreme Court by President Barack Obama.

Amar, an expert on constitutional and criminal law and author of the highly acclaimed America's Constitution: A Biography, who has taught at the Yale Law School and Yale College for over two decades, told India Abroad that Katyal should be the next solicitor general because "first, he is the current deputy. He's in place and his ascension would preserve continuity and tradition."

"In the Bush administration, both Paul Clement and Greg Garre were the deputies and they became solicitor general," he noted.

Amar, whose work has been cited by the Supreme Court in over 20 cases, argued: "Point two is that this position is tailor-made for Neal. It is the professor's position in the American government. The statute actually says that the solicitor general is supposed to be learned in the law. Here are the people that have very famously occupied this position: Professor Elena Kagan, she was dean of the Harvard Law School; Erwin Griswold, professor and dean of the Harvard Law School; professor Archibald Cox, also professor at the Harvard Law School. There was also Robert Bork, professor at the Yale Law School; Charles Fried, professor at the Harvard Law School; Walter Dellinger, professor at the Duke Law School; Drew Days, professor at the Yale Law School."

"So, this is a professorial position in the American government, and Neal has that credential," Amar said.

Katyal was professor of law at the Georgetown University Law School before joining the Obama administration.
Amar, former Yale Law Journal editor, said the third point why he believes Katyal is best suited for the position is because "this is a position for America's best litigator. It was held by Thurgood Marshall, who won the Brown versus Board of Education case. Neal is the Thurgood Marshall of his generation. He is a crusading litigator, who has fought and won landmark cases in the Supreme Court and elsewhere," he said, including the Hamdan case and "also he won the Voting Rights case."

Sreenivasan backs Srinivasan
 
Professor Sreenath 'Sree' Sreenivasan, dean of student affairs, Columbia University School of Journalism, and founder of the South Asian Journalists Association, backed his namesake, Sri Srinivasan, a partner at the law firm of O'Melveny & Myers LLP, for the next solicitor general.

"Several times a year," he quipped, "my inbox fills up with messages from people who confuse me with Sri Srinivasan. I tell people he is more important, more powerful and the most influential person in the US with that name. So, instead of being upset about sharing that name, I am delighted."

"He's a terrific lawyer who handles high profile cases, including the recent one before the US Supreme Court, which he won 9-0. I thought it was impossible in today's court; even deciding on the color of the sky would result in a 5-4 verdict!"

Sreenivasan was referring to the Hertz Corp versus Friend case that Srinivasan argued before the Supreme Court in a case where he addressed the question of what standards should apply in determining a company's principal place of business for purposes of diversity jurisdiction.

Srinivasan also appeared for former Enron Corporation chief executive officer Jeffrey Skilling, in Skilling versus US, arguing whether Skilling was convicted of violating an unconstitutional law. That the federal statute prohibiting 'honest services' fraud is unconstitutionally vague and that Skilling did not receive a fair trial by an impartial jury. A ruling is expected in the fall.

Sree said it was only in the US that so many Indian Americans in the US solicitor general fray "says a lot more about America than it does about them. What a great country this is that these guys with funny names could have this kind of an impact!"