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November 6, 2008 6:43 AM

First Female Solicitor General? Could Happen In Obama's Administration

Posted by Rachel Breitman

UPDATE: A comment below notes that Barbara Underwood served as acting solicitor general. She was actually deputy solicitor general under Seth Waxman from 1998 to 2001, and acting solicitor general for six months before Bush appointee Theodore Olson took over in June.

President-elect Barack Obama and his transition team are moving quickly to assemble a cabinet and fill key posts in the new administration, even as they grapple with the financial crisis and the country's defense policies.

By midafternoon Wednesday, Obama offered the position of chief of staff job to Illinois representative Rahm Emanuel, who accepted. The post, not surprisingly, is among the first and most pressing appointments to be made.

"It is very important to have a White House chief of staff in place within the next forty-eight hours to handle the personnel team and the transition," says William Galston, a former domestic policy advisor to President Bill Clinton. Once Emanuel accepts the post, Galston says, the secretary of the treasury and secretary of defense will be the next in line.

That hasn't stopped the speculation over some of the top legal posts.

So far, the names cropping up are a mix of Clinton administration veterans and longtime Obama friends (John Podesta, President Bill Clinton's former chief of staff and president of the Center for American Progress, is leading the transition team along with Obama friend and Chicago businesswoman Valerie Jarrett and senate aide Peter Rouse). The team includes former campaign staff, congressional chiefs of staff, executive vice presidents, and think tank experts. Christine Varney, Federal Trade Commissioner under Clinton and the head of Hogan & Hartson's internet practice, is personnel counsel on the transition team.

Covington & Burling litigation partner Eric Holder fulfills both requirements and is a good bet for landing a key post, as our colleagues at the Litigation Daily also note. (Andrew Longstreth profiled Holder in the June issue of The American Lawyer. Given Holder's sense of a duty to serve, Longstreth wrote, "if [President-elect] Obama asks his campaign cochair to become the first African American attorney general of the United States, count on history to win out.")

Holder, a deputy attorney general under Janet Reno, has been a key legal advisor to Obama throughout the campaign; he oversaw the vetting process of potential running mates. Holder was in Chicago Wednesday and unavailable to comment.

Sibling publication Legal Times reports much of the action is centered on slots at the regulatory agencies and the Justice Department. And the ABA Journal made early predictions, including Holder as attorney general and Robert Bauer, chair of the political law group at Perkins Coie and Obama campaign general counsel, as White House counsel. We reached out to a handful of the lawyers on the ABA's list and all said they have been asked not to speak to the press, then referred our inquiries to an Obama spokesperson who did not return calls.

We did speak with several advisors to the Obama campaign. A few mentioned Skadden, Arps, Slate, Meagher & Flom New York appellate litigation practice chair and former New York State solicitor general Preeta Bansal as a potential appointee to the Solicitor General's office. She is a member of what one Obama lawyer playfully calls the "Harvard Law School mafia." Bansal advised the President-elect on foreign policy and judiciary matters during the campaign and is working on his transition team.

"The Solicitor General is the only position where the statute requires that the officer be learned in the law," says O'Melveny & Myers's Walter Dellinger. He points out that experience as a state solicitor general would be valuable, as would be a record of advocacy before the court (Dellinger served as acting Solicitor General from 1996 to 1997).

Morrison & Foerster partner Beth Brinkmann and Harvard Law school dean and professor Elena Kagan's names have been attached to the SG post. While Barbara Underwood served as acting solicitor general for six months in 2001, no woman has been formally appointed to the position. Other possibilities, according to LegalTimes, include Stanford Law School professors Kathleen Sullivan and Pamela Karlan, as well as MetLife litigation counsel Teresa Wynn Roseborough.

Don't forget Obama's allies in state politics. "I have heard [Virginia governor] Tim Kaine's name thrown around for attorney general from two or three people," says a former federal prosecutor and current partner at a Washington-area firm.

The source also mentions Scott Harris, a founding partner at Harris, Wiltshire & Grannis, in Washington D.C, as a potential Secretary of Commerce. The Harvard Law School alum was in Chicago and unavailable for comment.

Harvard Law Review classmate and Jenner & Block Washington D.C. managing partner Thomas Perrelli, a key Obama fundraiser, will serve on the Justice transition team along with Wilmer, Cutler, Pickering, Hale and Dorr government regulatory practice co-chair David Ogden. According to some D.C. law firm partners, Perrelli might be in line for either a deputy or associate attorney general post.

Who else might we be reading about today?

"People that were with him from the beginning and understood the vision of politics that he was putting forward will be given heavy consideration,” says a New York-based partner who had advised in the campaign.

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i thank God

Unfortunately for the author, the first female solicitor general was Barbara D. Underwood, who was acting solicitor general from 1998-2001. Perhaps serving as 'acting' does not qualify her as 'first'.

Thank you for the correction. So much for multi-tasking.

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