Solicitor general pick Elizabeth Prelogar poised for approval despite 'flip-flopping' charge

The U.S. Supreme Court is seen on October 05, 2021 in Washington, DC. The Court is holding in-person arguments for the first time since the start of the COVID-19 pandemic.
John Fritze

WASHINGTON – President Joe Biden’s pick to represent the federal government at the Supreme Court is poised for confirmation despite Republican criticism that she abandoned legal positions staked out by the Trump administration before the high court.

Elizabeth Prelogar, who Biden nominated to be solicitor general in August, has sailed through her confirmation process, avoiding the bitter partisan brawls that accompanied some of his other Justice Department nominees. Senate Democrats on Mondayqueued up a vote on Prelogar for this week.

If confirmed, Prelogar, an Idaho native who clerked for two Supreme Court justices, will take over a position so important that its occupant is often described as the "10th justice." The solicitor general not only argues before the nation's highest court on behalf of the U.S. government, but also plays a key role in deciding whether the administration will appeal lower court rulings.

"It's evident to anybody who watches her argue a case and interact with the justices that, whether they agree with her or disagree with her, they trust her,” said Donald Verrilli, a veteran appellate lawyer who served as solicitor general during the Obama administration. "She'll be very effective."

Prelogar has served as acting solicitor general since January. She was required by law to step aside from that temporary post once Biden nominated her for the job. 

Republicans – including Iowa Sen. Chuck Grassley – have pressed Prelogar about changes in position the Biden administration made in cases before the court. Many of them were based on the change of administration, involving Trump-era policies that Biden was clear during his campaign that he would abandon. 

But the solicitor general's office has a history of staking out nonpartisan positions. Changes with a new administration are rare – and often frowned upon by the justices.

One of the most notable reversals dealt with the Trump administration's "public charge" rule, a 2019 regulation denying green cards to immigrants if officials determine applicants may benefit from safety net programs, such as Section 8 rental assistance, in the future.

The Supreme Court agreed in February to hear a challenge to that rule. A month later, the Biden administration stopped defending it in court, allowing an order from a federal judge in Illinois that blocked it to stand. The Supreme Court then dismissed the case.

The Biden administration also broke from the Trump position on the Affordable Care Act and in a case in which a low-level drug offender sought to reduce his prison sentence retroactively. The court rejected the challenge to the health care law and ruled against the plaintiff in the drug case.   

"I’m concerned about partisanship that she demonstrates,” Grassley, the top Republican on the Senate Judiciary Committee, said this month, adding that Prelogar also served on former special counsel Robert Mueller’s team that investigated Russian interference in the 2016 election. "This is a lot of flip-flopping. It impacts her credibility and the credibility of the office."

Two Republicans on the committee, Sens. Lindsey Graham of South Carolina and Thom Tillis of North Carolina, joined all Democrats on the panel in supporting Prelogar’s confirmation.

There have also been instances in which the Biden administration has not switched legal positions, including in a number of immigration cases this year. Biden attorneys have also continued to seek the death penalty for convicted Boston Marathon bomber Dzhokhar Tsarnaev, despite the president's personal opposition to capital punishment and the administration’s announcement this year that it has frozen federal executions.

A dozen former solicitors general – including from the Trump, Obama, Clinton and George W. Bush administrations – signed a letter in September supporting Biden's nominee.  

Prelogar, 41, a former Fulbright fellow and Miss Idaho, began taking classes at Boise State University when she was 12, according to the Idaho Statesman. After graduating from Harvard Law School, she clerked for Attorney General Merrick Garland, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit. She also clerked for two Supreme Court associate justices, Ruth Bader Ginsburg and Elena Kagan.

Kagan was the first woman to serve as solicitor general. Prelogar would be the second. 

Elizabeth Prelogar testifies before a Senate Judiciary Committee on Capitol Hill in Washington, September 14, 2021.

The office has deep ties with other members of the Supreme Court as well. Chief Justice John Roberts and Associate Justices Samuel Alito and Brett Kavanaugh worked there. 

"Many of the traits that I admire in her as a friend are also the traits that make her an excellent lawyer," said Jordan Heller, deputy general counsel at St. Luke's Health System in Idaho and a friend of Prelogar's since high school. "She is a great listener. She's genuinely interested in what other people think. She's respectful and fair." 

Prelogar fielded a number of unusual questions during and after her confirmation hearing, some tied to her work on Mueller’s probe. Grassley asked her about a government cellphone she was issued as part of that work. The phone, Grassley said, contained more than 200 personal photos when it was returned – but no work data.

Elizabeth Prelogar

Grassley appeared to be questioning whether Prelogar had wiped the work data. Prelogar, the mother of two sons, smiled and focused on the pictures instead. 

"I'm surprised there were that many," she said. "It must have been the case the kids were doing something cute."

In a follow-up written statement, Prelogar denied intentionally wiping any work data off the phone. 

Grassley also quizzed Prelogar about what she described as a "humor piece" she wrote for her high school newspaper when she was 17. Prelogar, who briefly considered journalism as a career, extolled cat owners in that piece, but said that dog owners tended to "be those people who wear fluorescent orange vests" directing traffic.

Did Prelogar still believe such generalities, Grassley asked?

"I have no basis to make generalizations about cat and dog owners," Prelogar responded, "and my mother's dog, Isabelle, is our beloved family pet."