July 10, 2009
Who Should Argue Citizens United?
I certainly think Deputy Solicitor General Malcolm Stewart should not reargue the case for the government. Here are my comments about Stewart after the first oral argument, and here are Dahlia's. Indeed, it is no exaggeration to say that had Stewart not made some of the comments he made, this case might have already been decided on narrow statutory grounds.
I don't know if there's some way for Marty Lederman, at OLC, to get permission to argue for the SG's office, but he knows more about the Austin line of cases than anyone else I know. Marty was a key contributor in writing this amicus brief in WRTL, and he's helped me with other pro bono projects supporting Austin as well (all before he went into government service).
Another possibility is Neal Katyal, who did an excellent job arguing NAMUDNO (in fact, all three oral advocates in that case were excellent). I would not like to see Citizens United as the first appellate argument for SG Kagan. I wonder if it is possible for the government to share time with the Congressional sponsors, and give Seth Waxman a chance to argue (or maybe Paul Clement would like to do some pro bono work for the supporters of BCRA)?
I'm sure this is all being discussed behind closed doors. Since I'm not privy to any of those discussions, I thought I'd put some thoughts out here.