>> jerry apps, professor emeritus here at the university of wisconsin. here's the cover of the book, "limping through life." this is booktv on c-span2. >> is there a nonfiction author or a book you'd like to see featured on booktv? send us an e-mail booktv@c-span.org. tweet us at the booktv or post a comment on our wall facebook.com/booktv. >> this next discussion of "the solicitor general and the united states supreme court." there's the book cover o your co-author to generate a wisconsin professor ryan owens. professor, what is a solicitor general? >> the solicitor general is the attorney for the united states. he or she represents the nested interests in the supreme court.

occasionally in the federal circuit courts of appeals. but is really the central figure in terms of litigating the u.s. position before the supreme court. >> whether or not that perfect as an expert in the topic being discussed or not it's more of a trial attorney type of thing? >> that's a good question. the office of the solicitor general sort of as three layers to it. at the very top we've got the was solicitor general donald really. that's a position that is now made by the president confirmed by the center's list of the people who are very, very good in the legal sense but also well-connected politically. so below then you for deputy solicitors general. and those are folks who are experts in issue area that's above and below the osha the staff attorneys. which unique about the office is cases with which they are

involved start off with the staff attorneys who are generalists, investigate the case, do the research into right as a generalist judge would want to read. not full of jargon and things that are technically specific. it will get kicked up into the next level, the deputy solicitor general to issue experts. they review the case and then they will kick it up to the solicitor general. each one of these briefs and the presentations are going to make gets filtered through generalists expert in issue area back up to journalists i think the the kind of language that comes out, the presentation that comes out of the office is quite unique because it gets filtered to so many different channels. when you ask about the solicitor general appearing are presenting a case, what he or she is an expert come in many instances the answer is no. are just rounded i could experts and people who can make very logical reasonable arguments.

i think that's a large but what explains their victory. >> where did the term come from? >> so the term solicitor general has been around for a long time but the office itself hasn't been. by way of backup i think the evolution of social general office is interesting and distance across comeback to the question about the name. were the first piece of legislation congress passed wasn't 1789 and was called the judiciary act of 1789, did a lot of important things. but it created the position of the attorney general. the attorney general at the point was a cabinet officer andy was charged under the act with doing two things. the first was to give legal opinions to members of the cabinet of the people than the federal government. if you want to know whether or not something is constitutional,

you ask the attorney general. we see that today in many states, the ag is still provide opinions on things of that nature. the second thing is to charge the attorney general with appearing before the supreme court on behalf of the united states. great, so as the country expanded the attorney general just got inundated with requests from cabinet members to answer legal questions about things. basically he couldn't keep up with all the work. but congress decided to do was allow the attorney general to hire private attorneys to litigate on behalf of the united states. as you can imagine this became a nightmare in terms of cost come in terms of just controlling the messages that came out of these attorneys. it was a nightmare scenario. what congress did after the civil war it asked the attorney general to take an accounting of things, where do you stand with

your work? do have sufficient staff members? the attorney general at the time set in terms of staff members and writing the legal opinions for people in the cabinet, we are okay. we are doing a good job. but we really have a problem keeping up with litigation on behalf of of the united states and the supreme court. what the attorney general at that point did was ask congress to give him an assistant and said it would be nice if i could have somebody call the solicitor general who would help the argument cases before the supreme court. what congress did is they paid attention to what he wanted, and in 1870 the past some legislation. what's interesting is they allowed the attorney general to hire somebody who would be learned in the law with the language they used. what's interesting about that is previous to this, that phrase learned in the law was something attached to the attorney

general. anybody want to be and attorney general had to be confirmed but also to be deemed as learned in the law. and congress passed the act in 1870 they shifted that expression from the attorney general over to the solicitor general which again emphasized the fact that we want this person to litigate in the supreme court. it's a fascinating history on the path to this legislation. as we detail in the book at the solicitor general wins like crazy. the solicitor general wins i think something like the green bay packers of the 1960s. the sg rarely loses. you can probably say the same thing about aaron rodgers today. anyhow, the sg really wins quite a bit. but what's remarkable about this is when congress was debating the legislation and figure out what we want to do, their biggest concern was on saving money. i mentioned earlier all of this business was about hiring private attorneys and at costly. what congress wanted to do

integrated the solicitor general was to save money. surely they do that. they didn't have to hire out for private attorneys all the time but they created this institution that has just been remarkably successful. clearly they wanted something that would be successful but to see how it went from being focus so heavily on cost savings cannocouldhave institution thate which is so remarkably successful. is one of those times where you have perhaps unintended consequences that are quite good. >> why does it have such a high success rate? >> well, that's a good question. really with the book we had two goals. the first was to figure out whether or not the solicitor general can influence what the court does. our second goal is to figure out if there is influence, what's the causal mechanism. if we turn to the first approach, the first question,

that was the predominant question in the book. up until we wrote this book there was a lot of very good scholarship that showed the solicitor general's office when someone. we are talking 60-70% of the time when the sg is a party to the case come when the solicitor general if there's a sort of a friend of the court and filed amicus curiae brief, that success rate actually is quite a bit higher than that. it can be in some instances, it was 100% in some terms. what we wanted to do was say okay, there's a lot of evidence of success but that doesn't necessarily imply influence. a solicitor general could be winning all kinds of cases for reasons that have nothing to do with influence. maybe you know what the court wants to hear so you just say that. so for us the real motivation was to try to figure out are the conditions under which is the attorney for the u.s. can get justices to do things they would not otherwise have done?

so to do that our goal was to look at a number of different stages in the decision-making process, and specifically what we wanted to do was say, let's take an attorney who's arguing a case on behalf of the u.s. let's see if we can compare him or her to other attorneys in similar cases with similar backgrounds but who didn't argue on behalf of the united states. so what we want to do is match these people so they are as simple as that of us get them to get except one is our good from the solicitor general's office and the other is not. if we can find while holding everything else sort of the same company would find that one actor wins more than the other, for us that suggests there is a strong degree of influence. and that's what we observed throughout this decision-making process. if you look particularly at just

whether the solicitor general's office wins or loses, so if we take attorneys who are otherwise identical, except in one case you've somebody arguing for the solicitor general and indicates it's like a private attorney. we find the solicitor general's office is about 14% more likely to win than the other attorney. is holding everything else most identical. so in other words, 14 times out of 100 the estes office is going to win just because they are arguing in the sg's office. so you said what explains this? a question you asked. we would match all these folks they were as similar as possible. what we tried to do was get at existing theories of solicitor general success. one of these theories turns on experience. how often have you argued before the supreme court a four. you might assume recently the more you've argued before the

court the better you are added, the more confident you are and, therefore, the more likely you are to win. so we decided let's try to match people into much experience you have had arguing before the court. it turned out the experience level doesn't really explain the solicitor general's success. yes, solicitors general are more experienced arguing before the court but when you compare them to private attorney gorgeous has experienced, they still win more often. the solicitor general does. we tested things like that, like the amount of experience, the resources you had, whether there is a separation of powers component. at the end of it all of those things didn't matter. i should say none of those things matter. what seems to matter more than anything is the solicitor's general objective and reasonable approach to cases. sg is to push the political boundaries too far with the

court. they understand they're going to come before the court in the future and their credibility is on the line. what they wind up doing is walking, they do a balancing act. yes, they are presidential loyalists, solicitor general r., but they are also advocates before the supreme court overturned. they have to tailor the message, they have to moderate the debate get pushed too far but a political president he will moderate their position when they go before the supreme court. i think that that along with the consummate legal professionals that work an officer i think that's what drives their success more than anything. >> how and why does the u.s. become a party to a court case? >> there are lots of giveaways this can happen, chief among which is the u.s. getting sued

by someone. so the u.s. does something that an individual thinks violates his or her statutory or constitutional rights, they are allowed to file suit in federal court. and take it up to the supreme court if that's the case of the worthy of the. there are other instances in which the united states can get involved. the primary one is just being a party to the case. but then as i suggested earlier there's this notion of being an amicus curiae participant. that's when the government is not a party to the case but has an interest in the outcome of the case. in those settings the solicitor general will get involved if the united states wants, it did message once the sg to get involved, and they can file a briefing get involved in that capacity. >> donald verrilli, current solicitor general, fact a well known name in washington, solicitor general has become

quite well known that hasn't always been the case? >> i think among those circles the legal elite circles to the solicitor general is always really well known. but it's kind of weird to examine the evolution of figures over time as the media has become more widespread and now with social be having such the force that it does. if you take a look, for example, at just 38 of justices, and they have followings today that one never would've thought of before. frankford when he is on the court had a following because it's so many former law students who wound up going into practice. he was sort of the rockstar of the time. now if you look at it you can see justice scalia has such a following of people. elena kagan seem to have one as well. if you go into look at the

justices financial disclosure reports and see where they're traveling, who they're speaking to you get a really interesting since of what's made of wood -- motivating these folks. maybe alicia with questions but one of the traveling to some places versus others. but the bottom line is we've seen that evolution with the justices. i think we've also seen that with solicitor general. they take on a following as well. i think about donald verrilli is he was as you suggested a pretty well-known, respected advocate before it got to the solicitor general's office. i remember listening to the arguments in the affordable care act case and the arizona immigration case, thinking to myself, boy, this guy is not doing well at all. i think most people listen to the moral arc of his body got his tail kicked by the justices. i remember turning off the oral our threats and thinking to myself this case usually much more interesting.

then i to stop and think for a couple days, what does the book said about this? the book says the sg is going to snatch victory from the jaws of defeat. honestly i think he did that in these cases. if that of any other attorney the day the kind of performance he did, i'm sure they would have won that case. because this is an article about of the u.s., i think they're able to get away with a lack of a better expression more than of the attorneys would. >> does the solicitor general's office had any other duties besides laser focus on supreme court cases? >> they have some duties. one of the primary things, sort of incidental to the supreme court litigation but really is quite important. they got a duty to represent the u.s. but there's also this duty of centralization and coordination. one of the biggest problems the u.s. faced in addition to the

costs before had the solicitor general was the fact individual agencies, whether hired private attorneys or not, they would take different legal positions in cases which is to say that you could have the same federal statute that you might want agency take one position in a case, and a different agency take a different position. you can imagine that causes confusion for justices, confusion for this position of the united states, who knows? so when the sg comes around, one of the other duties he performed is this duty of centralization and coordination. you can't appeal before the u.s. come you can't appeal law and let's get the sg's permission to do so. you can't file an amicus curiae brief with the supreme court without first getting the solicitor general's permission to do so. and if the sg does grant

permission, then he or she or someone in the office is going to be heavily involved with that case. so by virtue of sort of almost playing the coordinator or a veto pivot, the sg can help influence with the u.s. position is in the case. this is a pretty important our. if you talk to former sg's they'll say things like i remember when the sec the want to take one position, and how rv wanted to get one. to that extent i think you can see the power of the solicitor general. particularly as the president faces, say a congress that he doesn't get along with. maybe rather than going through congress trying to pass legislation use your solicitor general to go before the court and enact policy change one way or the other there. those are the two

responsibilities, the representation and the coordination. that is an important prerogative for the sg. >> is the sg independent of the attorney general? >> that's a good question. i'm going to say by and large the sg is independent of the attorney general. technically speaking the attorney general is the sg's boss. in large part this has been on the personnel of the attorney general and the president, how much independence they want to give to the solicitor general. both presidents, most attorney general are sympathetic to the independence. i think they found the independence. for a couple of reasons. one, they probably recognize that independence helps them win more cases before the court because of justices find them to be more credible. the other is presidents probably found you people who say no from time to time or at least they

ought to. if you are surrounded by people who are involved in groupthink, always agree with everything you say, and it comes this independent actresses you can't make that arguing in court that i think presidents of value that information because they like justices know it's credible. it's coming from a reasonable source. there have been instances where attorneys general i think have tried to push the sg although the but more often than not presidents and cabinet members are willing to defer to the solicitor general. in fact, i recall in the 1990s there was a federal court that struck down, i think was portions of nafta or wto, something like that and the clinton administration waited to put out a position until after they heard from their solicitor general. to me that suggests a high degree of credibility deference paid by the president to the sg's office.

>> booktv is on location at the university of wisconsin in madison. we have been talking with political science professor ryan owens, and here's his co-written book, "the solicitor general and the united states supreme court." >> do you want to watch this program again? visit booktv.org to watch any of the programs you see you online. type the author name or book title in the search bar at the top of the page and click the looking glass. you can share any of the videos on our website by clicking facebook, twitter osha icons on the bottom of the video box. booktv, since 1998, off the top nonfiction authors and books all of the double at booktv.org. >> booktv takes hundreds of author programs of the country all year long. here's a look at some events will be covering this week.