President Biden made it official Wednesday that he has nominated Elizabeth B. Prelogar to serve on a permanent basis as solicitor general, the government’s top advocate at the Supreme Court, a position she has held on an acting basis since January.
Prelogar has worked as an appellate lawyer for the government and in private practice, and was also an adviser to special counsel Robert S. Mueller III during the former FBI director’s two-year investigation of Russian interference in the 2016 election.
If confirmed by the Senate, Prelogar (she pronounces the name “pre-logger”) would be the second woman to formally hold the position. She served as a law clerk for the first, Justice Elena Kagan, who was solicitor general for President Barack Obama until he nominated her to the high court in 2010.
The solicitor general is the fourth-highest-ranking official in the Justice Department. Her most visible role is to present the government’s views at the Supreme Court, but she is responsible for the department’s broader appellate strategy.
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Often, the United States is a party in Supreme Court cases, but the solicitor general is also responsible for deciding whether the government will support one side or the other in cases where the federal government has an interest.
Michael Dreeben, who worked with Prelogar in the solicitor general’s office and the special counsel’s office, said she has the right combination of skills.
“She is an excellent listener, asks the right questions, and works through problems over and over until she finds the right solution for the United States,” said Dreeben, who also taught a seminar with Prelogar last fall at Harvard Law School.
Prelogar has argued nine cases at the Supreme Court, and Dreeben describes her arguments as “pitch-perfect — calm and persuasive.”
Even though Preloger has represented the administration since Biden took office in January, it has been a long road to getting the official nomination. Some have described the delay as a split between the White House and the Justice Department, where Preloger served for five years and is popular. She was a clerk for Attorney General Merrick Garland when he was a judge on the U.S. Court of Appeals for the D.C. Circuit.
People familiar with the process said the administration initially approached another veteran of the office, California Supreme Court Justice Leondra Kruger. Kruger, who is considered a potential nominee for the Supreme Court if Biden gets to make such a choice, turned down the offer, according to a person who spoke on the condition of anonymity to discuss personnel matters.
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On one level, Prelogar has the kind of credentials often associated with the solicitor general’s job: a graduate of Emory University and Harvard Law School, partner at the law firm Cooley LLP and as an associate at Hogan Lovells. She clerked for Justice Ruth Bader Ginsburg at the Supreme Court and then stayed on to work for Kagan in Kagan’s first term on the court.
But she brings an eclectic background as well. A native of Boise born in 1980, she was Miss Idaho 2004. She has a master’s degree in creative writing from the University of St. Andrews in Scotland. She studied Russian on a Fulbright scholarship to St. Petersburg, and has said she wanted to learn the language so she could read classic literature and poetry in the native language.
The Biden administration’s track record at the conservative Supreme Court was mixed in the past term. It quickly changed its position on a challenge to the Affordable Care Act, which the Trump administration had championed. The court upheld the act for the third time.
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But the new administration’s many changes from the Trump era caused problems as well. A last-minute change in the government’s view on whether a law allowing crack cocaine offenders to apply for lower sentences applied to low-level convictions forced the Supreme Court to delay a hearing.
The court then ruled unanimously against the Biden administration’s position, saying the law passed by Congress did not apply to low-level offenders.
John Wagner contributed to this report.
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