With All Deliberate Speed: The Life of Philip Elman

10. At the Office of the Solicitor General

CHAPTER 10 At the Office of the Solicitor General WORK AT THE SOLICITOR GENERAL'S OFFICE began for me in March 1944- I left seventeen years later, in April 1961. My only year off was the one I spent with Mr. Fahy in Germany (1945-46). The SG's office was a small office, consisting of only the solicitor general and eight lawyers, and the work couldn't possibly have been better from my point of view. We were the government's lawyers in the Supreme Court of the United States. We were responsible for every federal government case, whatever its nature and whichever government agency or department had handled it in the lower courts. We were generalists. We did not specialize in anything except the whole domain of federal law as presented in all Supreme Court cases in which the United States had an interest either as a party or amicus curiae. I was very fortunate in that almost by accident I became the lawyer in the office who had primary responsibility for all civil rights cases, starting with a case called Screws v. United States, argued in 1944 and decided in May 1945, and going all the way to Gomillion v. Lightfoot, which was argued in 1960. During that period, of course, the Supreme Court decided the cases that changed the whole course of American history in relation to the legal treatment of blacks. In addition to civil rights cases, I was also responsible for the handling of many antitrust and regulatory agency cases. Among other things, I can claim credit, if you want to call it that, for getting the Supreme Court to hold that even though baseball was exempt from the antitrust laws, football and boxing weren't. Anyway, because I argued or briefed a large number of cases involving the antitrust laws and the 157 With All Deliberate Speed Robinson-Patman Act, I was regarded as an antitrust expert when I was appointed to the Federal Trade Commission, even though I did not so regard myself then, nor do I now. The Solicitor General's Office when I was there possessed a unique and exhilarating spirit-starting with Solicitor General Charles Fahy, who was succeeded by Philip Perlman. J. Howard McGrath served briefly as solicitor general during the period when I was in Germany. He was succeeded by Simon Sobeloff, who had been chief justice of the Maryland Court of Appeals. I will for the moment put to one side Walter Cummings Jr., who served very briefly as a kind of "midnight" solicitor general during the last weeks of the Harry S. Truman administration . Simon Sobeloff was followed by J. Lee Rankin. So, all in all, I served under four solicitors general during a period of about sixteen years. Each in his own way was a remarkable, courageous, and admirable man. Each of them believed that the solicitor general occupied a very special role in the federal legal system. The solicitor general was not merely an advocate representing and advancing the interest of the United States in cases before the Supreme Court, the solicitor general was also the conscience of the government. A former solicitor general back in the early years of the office, named Frederick W. Lehmann, had written in a brief in which the government confessed error: "The United States wins its point whenever justice is done its citizens in the courts." That is more or less an exact quotation. That sentence is now chiseled in stone in the entrance to the private office of the attorney general of the United States on the fifth floor of the Department of Justice. I don't know how many attorneys general have paid attention to it, but that sentence and what it meant as to how we should conduct our day-to-day duties was never forgotten by me and, I believe, by most of the other people that worked in the Solicitor General's Office when I was there. It may sound sentimental and corny in these very cynical days, but we took it for granted, without making any big fuss over it or being self-righteous, that our job was to do justice, to people fairly and not give a damn what anyone thought. Now that was reflected in many At the Office of the Solicitor General ways. If in a criminal case that the government had won in a lower...