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Burden of Proof

Defending the United States with Three Former Solicitors Generals

Aired October 4, 2000 - 12:30 p.m. ET



JOELL PALMER, SUED CITY OF INDIANAPOLIS: I told them they couldn't search me. I said, I wasn't giving up my rights. They went through my pockets. They stuck the dog inside my car.

SCOTT CHINN, ATTORNEY FOR INDIANAPOLIS: But officers are to stop a sequence of cars in a row, 5 to 10 cars in a row, and have no discretion to pick one car off the roadway and stick it into the sequence.


GRETA VAN SUSTEREN, CO-HOST: Should drug-sniffing dogs put their paws on your back seats? The U.S. Supreme Court starts a new term. And today on BURDEN OF PROOF: Defending the United States with three former solicitors generals: Drew Days, Ken Starr, and Charles Fried.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

This week in Washington, the U.S. Supreme Court launched a new term. They'll decide some explosive cases involving search and privacy. Those cases will be argued before the court by a presidential appointee, the solicitor general of the United States.

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF, we're joined by three former solicitors general: in New Haven, Connecticut, Drew Days, who served during the Clinton administration.

VAN SUSTEREN: In Boston, Charles Fried, a Reagan appointee; and here in Washington, Ken Starr, who served during the Bush administration. Also joining us on our panel: Juhie Vejayvargiya (ph) and Annita Patankar (ph).

COSSACK: And in the back: Sheri Phillips (ph) and Sean Jonaitis (ph).

Let's go right to you, Ken Starr, the former solicitor general. How do you become a solicitor general, and where does that name come from? KEN STARR, FORMER SOLICITOR GENERAL, BUSH ADMINISTRATION: Well, the name comes from an English practice, and an English law office, an officer who has legal responsibilities, and in this country in particular, the officer who is charged with representing the United States in the Supreme Court, among other duties. The basic duty is to assist the attorney general in whatever needs to be done, but by tradition that is primarily representing the United States and the Supreme Court.

You get to be appointed by the president of the United States if the Senate confirms you.

COSSACK: To follow up, and you are like the chief trial litigant on behalf of the United States before the United States Supreme Court.

STARR: I would phrase it, the chief appellate advocate because of the nature appellate advocacy. But that's right, you are the chief courtroom lawyer at the appellate stage, including from time to time, depending on issue, in other courts of the United States.

VAN SUSTEREN: Charles, let me go to you. Everyone knows, our viewers know about the attorney general of the United States, but isn't this just like the most fun job for a lawyer, isn't this the best job?

CHARLES FRIED, FORMER SOLICITOR GENERAL, REAGAN ADMINISTRATION: It is the best job anybody could possibly have if you are a lawyer, because you do really important work, but usually people who do really important work actually just are pushed out front, and a lot of people behind them have done all the work. This time, the solicitor general actually has to know the case, actually has to have read the work, has to have written the work.

When you are out there before the Supreme Court answering questions, you can't turn to your staff. You are there. You are it. So it is very substantive.

VAN SUSTEREN: Drew, let me ask you the same question. All three of you gentleman have had great and fascinating jobs, but is this the best one you have had?

DREW DAYS, FORMER SOLICITOR GENERAL, CLINTON ADMINISTRATION: Without a doubt, it's really a great job for a lawyer. It's having a first-class law firm, being the senior partner, and being able to pick the best and most interesting cases to argue before the highest court in the land.

VAN SUSTEREN: All right, what's the worse part about it then, Drew? There must be something bad about the job?

DAYS: Well, I think it -- to pick up on what Charles just said, you are there all alone, and you can sometimes feel very lonely standing up before the Supreme Court, making arguments that the justices are simply not buying.

FRIED: The worse part is it doesn't last forever. COSSACK: Ken, let me get back to you. What happens if, now, you are assigned a case that you have to argue before the Supreme Court, and perhaps you, one, don't want to argue it, you don't agree with that position, or two, you believe that maybe the government shouldn't have taken this this far.

STARR: Well, if it is really bad then you may choose not to take that position, and you may say: I just don't think that the government's position is well founded. We shouldn't be pressing this particular point, this particular argument.

If it is really severe, the government will even confess error, to say we really made a profound mistake, and guided the court below into error.

COSSACK: Let me give you a hypothetical. You are having a little conversation with, I suppose, your boss, the attorney general. And the attorney general has said: Look, this is the position of the administration, of the attorney general, you are the solicitor general, we expect you to be out there defending us vigorously on this position. At that point do you say: OK, chief, I'm out there.

STARR: Yes, you would. If it can be made as an officer of the court, in terms of a reasonable argument that you can make in good faith, even if, were you a judge, you would say: I would not embrace this particular position. But nonetheless, it is a reasonable position that can be advanced in good conscience before the court. That is your duty.

You are an advocate for the United States. It is a special duty, a special set of duties to the court, but you are at bottom an advocate for the position of the United States once that position has been determined.

VAN SUSTEREN: Charles, I...

FRIED: I don't agree with that.

VAN SUSTEREN: Go ahead, Charles.

FRIED: It seems to me the whole premise of the question is wrong. You've been assigned. Nobody assigns these things to you. You assign them to yourself.

Now if the attorney general, or I suppose the president, tells you to argue a position which you think is wrong, or which you think is inconsistent with what the administration should be doing, you don't do it. You don't do it and you say: Gee, get someone else to do it. I guess -- I thought we knew why you picked me, but I guess we were mistaken, so I think somebody else should do it.

VAN SUSTEREN: Charles, let me -- go ahead, Drew.

DAYS: Let me follow-up on that. I think Ken is correct that in the vast majority of cases, the solicitor general will argue the position that the government has decided upon. Charles is correct that the solicitor general has a great deal of discretion, with respect to what cases are actually presented.

But there is recognized in the Justice Department the fact that one is, first and foremost, an officer of the court. And if there is, for example, a matter that affects one's intimate views, religious or philosophical convictions, there have been cases where solicitors general have simply declined to appear before the Supreme Court, and that personal decision has been respected within the department.

VAN SUSTEREN: Charles, let me ask you about, you served under President Reagan. I am curious, did you ever have any conversations about your job with the president or is your discussion...

FRIED: None at all, never once.

VAN SUSTEREN: How about you, Ken, with -- you served under President Bush, did you ever discuss your job with the president?


VAN SUSTEREN: And Drew, what about you, you served under President Clinton is, I mean, is this job so removed from the president himself?

DAYS: I had a job interview with the president, but he was basically interested in the role that the solicitor general played. Even presidents sometimes don't know exactly what solicitors general do.

COSSACK: Drew, in selecting a case, or in deciding which cases should go to the Supreme Court by the Justice Department, do they call in the solicitor general and say: What is your opinion regarding what we should do on the future of this case? or is it something that is made independent of what the solicitor general's feelings are?

FRIED: The solicitor general is the person that makes that call. There is no they there. The solicitor general is the person who selects, that's his job.

DAYS: In normal cases, the way it works is that recommendations or requests come up from departments or agencies of the federal government, recommending that the government take a position in the Supreme Court. Those recommendations are reviewed within the Justice Department, and in the Solicitor General's Office. And ultimately, the SG decides whether that case is going to be presented to the court.

Technically, and legally, the attorney general and the president can overrule the solicitor general, but it's been developed a convention, an expectation, that the solicitor general will, in the vast majority of cases, make the final decision.

COSSACK: All right, let's take a break. Up next, a look at some cases of privacy before the Supreme Court this week, including a case in which pregnant women were given drug tests without a search warrant.

But first, as we celebrate our 5th anniversary, a behind-the- scenes tale from my co-host, Greta.


VAN SUSTEREN: Roger is good friends with my husband, and has said that my husband deserves the medal of honor for living with me. You know, so we genuinely like each other. We genuinely respect each other, and we genuinely disagree sometimes, but not all the time.

And, you know, we have both been in the courtroom where you go into the courtroom, we go beyond the bar, you duke it out with the other side, and you fight like crazy with the lawyer on the other side, and you fight like crazy with the judge. But then it might not be unusual that, an hour later, you are sitting there having a beer with one of them, and it's a different sort of situation. It is not like you are mortal enemies, you just disagree. And Roger and I can do that.



VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chatroom.


SUSAN DUNN, WOMEN'S ATTORNEY: She was transported by shackles back and forth to the hospital to be examined. She gave birth to her child while she was locked to the bed.

BOBBY HOOD, ATTORNEY FOR CHARLESTON, S.C.: The policy, then, was driven by a very important government need to stop child abuse. In South Carolina, it's illegal to use cocaine, and it's illegal to use cocaine whether or not you're pregnant.


COSSACK: A South Carolina hospital conducted drug tests of pregnant women without their consent. Now, the case against the city of Charleston is just one issue of privacy being considered by the United States Supreme Court this week.

Ken, this is a case that involves the city of Charleston versus an individual who is claiming that the city of Charleston had a program that would have been unconstitutional. Now, the solicitor general would not be involved in this, directly, but may be involved -- would, perhaps, be involved in Amicus Brief; and how would that work and would you help and assist, perhaps, the city of Charleston in this case?

STARR: Yes, the government might choose to become involved, and frequently does, in issues that could affect, especially, federal law enforcement agencies in this context.

If there is a federal interest, a federal problematic interest, or some agency has an interest, then the government, appropriately, becomes involved. It hears from the agencies, those various sections of the justice department; you gather their views and you come to the determination, No. 1, of whether you should participate, whether it would be helpful to the court to participate; and if you do, to, obviously, file the Amicus Brief and to collaborate while keeping one's independence -- to collaborate in the sense of working with the state inasmuch as, very likely, the oral argument would be divided between the state and the United States, with the solicitor general's office perhaps having 10 minutes of the 30-minute oral argument.

VAN SUSTEREN: Charles, tell me some tricks of the trade. I mean, this office, the solicitor general's office and all his assistants know an awful lot about the Supreme Court.

In your experience, does the office argue to a particular justice, raise certain issues knowing who the court is -- the competition -- more scientific than simply arguing the facts?

FRIED: Well, the facts are the smallest part of it, anyway, because this isn't a trial and they're not a jury.

You argue the law and the main thing is that you know, because of your experience, what concerns the justices. The main thing about an argument is not a jury speech. The main thing is to try to anticipate what is worrying the justice.

VAN SUSTEREN: And do you know that by virtue of the experience -- is there something to be said for having argued a lot there?

FRIED: There's a great deal to be said for that. As a matter of fact, there is -- it's less so than they used to be -- a Supreme Court bar; people who are experienced in practicing before the Supreme Court and know it.

It's very different. First of all, you have nine justices, and that's very different from most benches that you appear before. And they -- these justices have a particular style and a particular way of questioning. For instance, it's a very hot bench. You can't get a full paragraph out, you start talking and they are all over you at once.



FRIED: It's much worse than that.

COSSACK: Well, you haven't seen us at our worst.

Drew, oftentimes a solicitor general will be on one side of the case and receive what we lawyers call Amicus Briefs, "Amicus" meaning, "friend of the court," on your side. What kind of influence do you have on that, and do you discuss those Amicus Briefs with the different organizations that may ask, we need to file on your behalf?

DAYS: Yes, there are certainly conversations. The policy of the solicitor general's office has been, generally, not to oppose parties that want to file Amicus Briefs in support of the position that the solicitor general is taking; but there's no coordination as such.

One of the things that, certainly, I was interested in avoiding was a group of, what we would call, "me too" Amicus Briefs that simply repeat what the justice department is going to say in its brief. What is helpful is having Amicus Briefs that flesh out the implications of a particular legal issue and the impact that it's likely to have beyond the facts of that particular case.

VAN SUSTEREN: We're going to take a break.

Up next, our guests look back on their careers and cases before the Supreme Court.

But first, as we continue to celebrate our 5th anniversary, Roger takes a trip down memory lane.


COSSACK: People have just gotten to know us and gotten to know how Greta reacts to certain things and how I react to certain things; and I think that interchange of ours, which is a way of, sort of, dealing with each other aggressively but not disrespectfully; I think this is the time.

I mean, certainly, Greta more than holds her own, and I think this is the time when people will look at a competent woman, a competent man dealing with each other in that way; and if they have something to say, we want to hear what they have to say. And I think people understand that Greta and I, after all is said and done, you know, we get along. We like each other and it works. I think it comes across.



VAN SUSTEREN: Welcome back to BURDEN OF PROOF. Today we're joined by three lawyers with different perspectives on the law, but with one thing in common: They each served as the solicitor general in different administrations.

Ken, I was going to ask you what was your favorite case, but I thought viewers might misinterpret the term "favorite." So let me say memorable. What's the most memorable case for you?

STARR: Well, I think memorable in the terms of challenging. Really, there were two. I would put two tied for first place. And the first was Nancy Beth Cruzan, the first right-to-die case. We took the side of the state in that case.

VAN SUSTEREN: In that case you would not -- which is what?

STARR: Well, that the state should be able to impose very daunting evidentiary standards before terminating nutrition and hydration at the family's request. It was a very tough issue. I had not had to deal with those kinds of questions before.

The second was Planned Parenthood vs. Casey, which was one of the more important, as it turned out to be, abortion cases where the court plurality opinion leading the day reaffirmed what it called the "core holding of Roe v. Wade."

VAN SUSTEREN: Charles, the same question: the most memorable case.

FRIED: Morrison v. Olson where I argued that the independent counsel law was unconstitutional. If I had won, which I didn't -- I lost 7-1 -- I would have saved my friend Ken Starr a great deal of grief.


VAN SUSTEREN: And you say 7-1 because there was one justice who disqualified himself.

FRIED: The wonderful -- one justice was disqualified because Justice Kennedy, his appointment had not gone through in time for the oral argument. And Justice Scalia wrote a great, great dissent, say I.

VAN SUSTEREN: Would you win today, arguing that today?

FRIED: I think I would have gotten more than one vote today, that's for sure.


I sure would have.

VAN SUSTEREN: Drew, the same question to you: your most memorable.

DAYS: The case I remember most is the term limits case where there was a challenge to the constitutionality of an Arkansas statute that imposed term limits on members of Congress. It was memorable because one had the sense in the Supreme Court chamber at the time that the justices understood that it was a very important case.

And I think the lawyers, in citing Madison and Jefferson and the "Federalist Papers," understood that something that's not often the case, namely that those references really were relevant to the issues before the court. And there's been a mention of the court being a hot bench with a lot of active questioning from the justices. But during that day, the justices seemed to understand there was a need for a coherent thread in the questioning, and they followed one after another, something that I certainly didn't see very often when I was arguing before the court in other cases.

COSSACK: Ken, what's the relationship between the solicitor general and the court? Are they friends? Do they socialize from time to time? Just to get personal for one second, 16 years ago I argued before the United States Supreme Court and I still remember when Solicitor General Rex Lee came out. And before the argument, several members of the bench looked down and said, oh, hello, General Lee, greeted him warmly. And I felt, gee whiz, they don't know me at all. They're calling him a general. I happened to have been a PFC in the Army...

VAN SUSTEREN: For a week.

COSSACK: ... why don't they, you know -- for a week, why don't they do something about that. And I always felt that there was this sort of warm relationship.

STARR: Well, it's a profession relationship, it's not a personal relationship. One may happen to know one or more of the justices, but, no, it is not the kind of circumstance where one socializes together. In fact, to the contrary. I think there is a sense that seemliness suggests a certain amount of distance. If you're at a Supreme Court Historical Society gathering, that's one thing, but that you otherwise recognize the importance of decorum, dignity, including distance.

But you are there all the time. Your office is representing the United States in court virtually if indeed not every single day that the court has an argument. So there's that professional closeness. And in particular for the solicitor general himself, they see the solicitor general there more than any other single advocate. So there may be a certain amount of familiarity, but it doesn't mean that it's going to mean Roger has a tougher time in the argument than General Lee.

VAN SUSTEREN: And familiarity could breed contempt, too. There's always a flip side.

FRIED: I remember being so sympathetic to Roger's situation that, at one point, I raised the possibility that the government lawyers not wear cutaways and striped trousers because they already seemed to have too much of a leg up. And that they wear this special, fancy uniform seemed more daunting than it should be. But it's an idea I didn't pursue, although I still think it's still right.

COSSACK: All right, that's...

DAYS: Greta and Roger, the relationship is as Ken and Charles indicated. But there is...

COSSACK: Drew, I'm sorry to interrupt you, and please forgive me, but I'm being told we're totally out of time, because that's all the time we have for today. Thanks to our very, very good guests and thank you for watching.

VAN SUSTEREN: We'll see you tomorrow on another edition of BURDEN OF PROOF.



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