Elizabeth Prelogar testifies before the Senate Judiciary Committee. Elizabeth Prelogar testifies before the Senate Judiciary Committee during her confirmation hearing to be U.S. solicitor general, on Sept. 14, 2021. Image via Committee Video

Elizabeth Prelogar, nominated by President Joe Biden to become solicitor general of the United States, eased through her confirmation hearing Tuesday with likely confirmation by the full U.S. Senate.

Prelogar, initially appointed principal deputy solicitor general, became acting solicitor general at the start of the Biden administration and continued in that role until her nomination to the full position in August. Because of the requirements of the Vacancies Reform Act, she moved out of the acting position when nominated and has since been working in the U.S. Justice Department's office of legal counsel.

During Tuesday's hearing before the Senate Judiciary Committee, the only critical questions for Prelogar came from Republican Sen. Tom Cotton of Arkansas. Cotton pressed Prelogar on her decision to change position and confess error in Terry v. United States.

In Terry, the U.S. Supreme Court confronted the statutory question of whether low-level crack offenders were entitled to a sentence reduction under the First Step Act. The justices unanimously held that Congress had not extended that relief to low-level offenders, only to high-level offenders like drug kingpins.

"The United States had been defending his sentence, but in March you waited until very last moment to file a letter with the court saying the department had changed its mind," Cotton said to her. "You not only wouldn't defend it but you confessed error. It wasn't a close call. The government lost 9-0. How did your office get it so wrong?"

Prelogar replied that it was a very difficult decision. "I did focus on the legal issues involved and ultimately the interests of the United States," she said. "The question had divided the circuit courts. After looking at all of the tools of statutory construction, it was my judgment Congress intended to extend that relief to low-level offenders."

Cotton pressed Prelogar on who made the decision to confess error. She answered that it was her decision.

Cotton and Iowa Republican Sen. Charles Grassley criticized the office for what they called a "pattern" of flip-flopped positions. Prelogar said, "In the vast majority of cases, we stayed the course." It is not unusual when administrations of different ideologies change that there are also changes in positions in cases before the Supreme Court, but they generally are few in number. The stark differences between the Trump and Biden administrations, however, led to more than the usual number of switches.

The committee received bipartisan letters supporting Prelogar's nomination from 12 former solicitors general and acting solicitors general; 67 Supreme Court practitioners, former clerks who served with her during the October 2008 and 2009 terms, Harvard Law professors and her former Cooley partners.

A Harvard Law graduate, Prelogar clerked for Attorney General Merrick Garland when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, and later for U.S. Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan.

In her opening statement, Prelogar paid tribute to Ginsburg, who died Sept. 18, 2020. "She is very much on my mind today. To me she was teacher, mentor, a justice seeker and the epitome of unrelenting grace. She moved my admission to join the Supreme Court bar."

If confirmed, Prelogar will be only the second Senate-confirmed female solicitor general. Kagan was the first. Kagan was nominated by President Barack Obama and served until her appointment to the Supreme Court in 2010.

Prelogar served on the special counsel's Russia investigation as an assistant special counsel to Robert Mueller III. As acting solicitor general, Prelogar argued two cases in the Supreme Court term that just ended, and received high marks from her colleagues in the Supreme Court bar.

Prelogar, who is fluent in Russian, previously completed a master's degree in creative writing at the University of St. Andrews in Scotland, earned her undergraduate degree in English and Russian from Emory University, and was a Fulbright Fellow in St. Petersburg, Russia. Born and raised in Idaho, Prelogar lives in Washington, D.C., with her husband and their two sons.

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