President Donald Trump can’t seem to find a lawyer to represent his administration before the Supreme Court.
Miguel Estrada, a high-powered attorney who was once nominated to be a federal appeals judge, quickly dispelled rumors on Wednesday that he’d be willing to serve as the nation’s next solicitor general, the Justice Department lawyer who leads the government’s litigation efforts before the nation’s highest court.
In an emailed statement to The Huffington Post, Estrada cited his prior experience with Senate confirmation politics to explain his unwillingness to serve in the Trump administration ― or any administration.
“I have only respect and best wishes for those who agree to serve despite the deterioration of the confirmation process over the years, but everyone who knows me in this town knows that I would never accept a job that requires Senate confirmation or, for that matter, willingly place myself in any situation ... in which convention requires that I be civil to Chuck Schumer,” Estrada said.
Sen. Schumer (D-N.Y.) is now the Senate minority leader. In 2003, he played a leading role in blocking Estrada’s nomination to the U.S. Court of Appeals for the D.C. Circuit, often regarded as the second-most powerful court in the country. The nomination languished in the Senate for more than two years in the face of a Democratic filibuster. Finally Estrada asked President George W. Bush to withdraw his name.
Memories of that bitter battle may not be Estrada’s only reason for eschewing any chance to be solicitor general. The Honduran immigrant represented Univision in then-candidate Trump’s lawsuit against the Spanish-language network. The contract dispute concerned Univision’s decision to back out of carrying the Miss USA pageant after Trump conflated Mexicans with rapists.
Estrada declined to comment when asked to elaborate on his statement.
During the Trump transition, Kellyanne Conway’s husband, George Conway, was reportedly in the running to be named solicitor general. And later Chuck Cooper, who is close with Attorney General Jeff Sessions, publicly withdrew his name from consideration. All three men are respected conservative litigators in private practice.
Like Estrada, Cooper didn’t seem willing to go through the Senate confirmation process. “Life is too good and too short,” he told Politico last month. In a separate statement, Cooper said that Sessions’ own confirmation process led him to conclude that he didn’t want to subject himself to the partisan politics of the moment.
During a briefing last week, Sean Spicer, the White House press secretary, was asked specifically about Estrada and Cooper. He said no “personnel decisions” had been made and refused to elaborate on whom Trump was considering.
The U.S. Solicitor General’s Office is traditionally insulated from the trauma of politics, in part because much of its work involves representing the position of the United States before the Supreme Court and other appeals courts in areas of law that are not ideological. But it can get drawn into the spotlight.
The absence of a Senate-confirmed solicitor general may complicate the Supreme Court’s decision-making in at least one current high-profile case.
On Wednesday, one side in the battle over bathroom access for transgender students urged the justices to seek the Trump administration’s views on the matter. The administration last week withdrew the agency guidance that had sparked the case, but it has not taken a fuller position on the dispute.
Usually, the Supreme Court wants to hear the Justice Department’s legal opinion on a matter as significant as whether federal law covers gender identity discrimination. But without a solicitor general in place ― and the acting head of the office recused from the case due to a prior conflict ― the justices may have to go forward on their own.