The Solicitor General’s Ghost

The creation in 2015 of Wisconsin’s Office of the Solicitor General drew vigorous reaction across the political spectrum, for much of the new office’s caseload consisted of challenges to policies of the Obama administration.  Established by the state’s Republican Attorney General (Brad Schimel) during the administration of Republican Governor Scott Walker, the solicitor general’s office was described by Republicans as an essential tool for safeguarding state independence from federal overreach.  “Attorney General Schimel’s interest in joining multistate lawsuits that protect the powers constitutionally delegated to the states is also the people’s interest,” explained Johnny Koremenos, a spokesman for the Walker administration. “There’s nothing frivolous about protecting and preserving the rule of law.”[1] 

Although critics viewed the solicitor general’s office as blatantly partisan—“a mini right-wing law firm in the attorney general’s office,” complained Chris Taylor, a Democratic State Representative—defenders dismissed such criticism as partisan itself, and they directed attention to the new office’s elite staff of attorneys, including two former U.S. Supreme Court clerks.  “The state of Wisconsin is getting an outstanding deal for the attorneys in the solicitor general’s office,” Koremenos emphasized. “The state is paying these specialized attorneys a fraction of what they would be paid in a private law firm.”[2]

Indeed, when Attorney General Schimel expressed to state legislators the need for a solicitor general’s office, he noted that the flood of litigation early in the Walker administration had overwhelmed the Justice Department’s staff attorneys, thereby requiring taxpayers to spend millions of dollars on outside lawyers.  That changed not long after the formation of the solicitor general’s office, Koremenos maintained, as the Justice Department no longer had to hire private-sector attorneys.  This outcome pleased State Assembly Speaker Robin Vos, whose spokeswoman underscored that “[w]e are fortunate to have such a high level of expertise in the office, which eliminates the need for outside counsel and is a cost savings.”[3]

However, the desirability of a solicitor general’s office grew less apparent to Republican legislators after Governor Walker was defeated in 2018 by his Democratic challenger, Tony Evers, who would take office in January of the following year and be able to name a new solicitor general.  Thus, a special legislative session in December 2018 abolished the office, and the solicitor general disappeared.

Or so it seemed.

The Wisconsin Legislature’s so-called “lame-duck” December measures faced legal challenges almost immediately, and when they did, who should emerge to lead the legislature’s defense but the former solicitor general himself, Misha Tseytlin, now an attorney at the Chicago law firm of Troutman Pepper.  Thereafter, the Republican leadership continued to hire not only Tseytlin but also some of the attorneys who served with him as Deputy Solicitors General.  They have represented the legislature routinely in recent cases involving election disputes and responses to the covid pandemic, as well as challenges to the “lame-duck” measures and Governor Walker’s “Act 10.”

A Nexis-Uni search of the period from the spring of 2019 to the present turned up fourteen cases in which the Wisconsin Legislature collectively, or its individual leaders (most notably Vos and Senate Majority Leader Scott Fitzgerald), received legal representation from attorneys who had staffed the former solicitor general’s office.  The cases are listed in the following table along with the attorneys from the former solicitor general’s office whose services the legislature engaged.[4]  In a sense, then, the office has not vanished, but simply assumed a less corporeal form and thereby eluded control by the new Democratic governor and his attorney general.  Over the past two years, more than half the office’s attorneys—now all at private law firms—continued to advocate for Wisconsin’s Republican politicians, and they continued to do so at taxpayer expense sufficient to prompt such articles as “Republicans spend nearly $2 million in taxpayer money to fight election lawsuits.”[5]

The controversy generated by Republican legislative leaders hiring lawyers from private firms at substantial taxpayer expense has not melted away along with the state’s recent snow piles.  Last week, four Madison teachers filed suit to block the legislature from retaining attorneys from the firms of Consovoy McCarthy and Bell Giftos St. John in anticipation of litigation arising from the upcoming round of redistricting.[6]  As they prepare to defend themselves from this lawsuit, it will be interesting to see if the legislative leaders summon, once again, Misha Tseytlin and his associates from the spectral office of the solicitor general.

[1] Steven Verburg, “Wisconsin AG fights feds with new 5-lawyer unit,” Wisconsin State Journal, July 24, 2016.

[2] Verburg, “Wisconsin AG fights feds.”  For a sharp difference of opinion regarding the nature of the new solicitor general’s office, see Chris Taylor,Meet Wisconsin’s Solicitor ALEC, Misha Tseytlin,” The Cap Times, April 21, 2016; and Rick Esenberg and Mario Loyola,Why Wisconsin needs a conservative solicitor general,” The Cap Times, April 29, 2016.

[3] Verburg,Wisconsin AG fights feds.”

[4] The table indicates that in one of these cases, Democratic National Committee v. Bostelmann, a quartet of attorneys from the former solicitor general’s office represented the Wisconsin Legislature.  In the process, these four lawyers found themselves crossing swords with one of their recent colleagues—Sopen Shah, a former Deputy Solicitor General, now part of the legal team hired by the Democratic National Committee and the Democratic Party of Wisconsin.

[5] Patrick Marley,Republicans spend nearly $2 million in taxpayer money to fight election lawsuits,” Milwaukee Journal Sentinel, October 15, 2020.  The Republican leadership paid some of this money to law firms that do not employ members of the former solicitor general’s office, though the article names Troutman Pepper (which employs Misha Tseytlin and Kevin LeRoy) as one of the firms “getting the biggest share of the work.”  The Evers administration has also hired private law firms on occasion, though at much lower rates than those paid by the Republicans.  Patrick Marley, “Wisconsin GOP billing taxpayers almost twice as much as Democratic governor for lawyers in lame-duck lawsuits,” Milwaukee Journal Sentinel, February 11, 2019.

[6] Molly Beck, “Lawsuit seeks to block Republicans from hiring outside lawyers for the coming fight over redistricting,” Milwaukee Journal Sentinel, March 10, 2021.

About Alan Ball

Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.

alan.ball@marquette.edu

SCOWstats offers numerical analysis of the voting by Wisconsin Supreme Court justices on diverse issues over the past 61 years.

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