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What The Kagan Pick Means For Justice Department

Solicitor General Elena Kagan's nomination to the Supreme Court will likely create a critical opening at the top of the Justice Department, even as other key legal posts requiring Senate confirmation remain unfilled.

If Kagan secures the blessing of the Senate this summer, the White House must find a new advocate to argue its positions before the Supreme Court in clashes over executive power, financial regulations and religious liberty.

Legal analysts say they expect Kagan, who survived 31 "no" votes in her bid to become solicitor general last year, to emerge bruised but successful in a confirmation battle that's likely to focus on her lack of judicial experience.

Two federal sources -- who asked not to be identified because they are not authorized to speak about personnel decisions -- say that among the leading contenders for her job is Donald Verrilli Jr., a longtime high court practitioner who worked on thorny national security issues at the Justice Department before moving to the White House earlier this year.

Verrilli had been a top member of the Supreme Court bar in private practice at the law firm Jenner & Block. He argued and won cases on copyright infringement and age discrimination, among other subjects, during his decades-long career. Verrilli worked as a law clerk to the late Justice William Brennan Jr. after editing the Columbia Law Review.

Another candidate for the solicitor general post is Neal K. Katyal, Kagan's principal deputy, who is a favorite of Attorney General Eric Holder, the sources say.

Katyal won a landmark 2006 case involving Guantanamo detainee Salim Hamdan before the Supreme Court. By a 5-3 vote, the court invalidated the Bush administration's military commission process -- a victory for Katyal's client, Osama bin Laden's onetime driver.

Before joining the Obama Justice Department, Katyal was a law professor at Georgetown and served as a national security adviser to Holder during their tenure at Justice in the Clinton administration. He was a law clerk to Justice Stephen Breyer after graduating from Yale.

The solicitor general vacancy comes at a time when the White House also needs to fill other key Justice posts. Washington criminal defense lawyer James Cole has been floated in recent weeks as a candidate for the deputy attorney general job, the department's second in command. Cole befriended Holder three decades ago, when they both served as young prosecutors in the department's public integrity unit.

And David Barron, a Harvard law professor who has been working since the transition as acting chief of the department's Office of Legal Counsel, may return to the school later this year, the federal sources said. Barron has been operating at a breakneck pace in the office, which provides binding advice to the executive branch on such issues as the closure of the military prison at Guantanamo Bay, Cuba, and the legality of congressional proposals.

The administration's first nominee to serve as Office of Legal Counsel chief, Indiana University law professor Dawn Johnsen, backed away last month after citing more than a year of delays in the process.

Justice Department spokeswoman Tracy Schmaler declined to comment on personnel moves.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Carrie Johnson is a justice correspondent for the Washington Desk.