Biden's Solicitor General Nom May Have To Recuse Self From Harvard Affirmative Action Case

(Glen Cooper/Getty Images)
August 18, 2021

President Joe Biden’s pick to represent his administration in the Supreme Court collected over $10,000 in compensation from Harvard Law School, a transaction that may force her to recuse herself from a landmark challenge to the university’s affirmative action program, the Washington Free Beacon has learned.

The Free Beacon obtained financial disclosure forms solicitor general nominee Elizabeth Prelogar filed with a government watchdog, which show that she collected $10,500 from Harvard Law School for teaching and unspecified consulting services. If confirmed, Prelogar will represent the U.S. government before the Supreme Court.

President Joe Biden issued an executive order on his first day in office that requires executive branch personnel to recuse themselves from matters involving their former employers and clients for two years, effective from the date of their appointment. An employer is considered any entity for whom an individual worked in the two years prior to the appointment. According to the disclosure, Prelogar worked at Harvard in 2019 and 2020.

Under the terms of the order, Prelogar will be required to recuse herself from the Harvard case until 2023, assuming she is confirmed this calendar year. Senior White House officials can grant Prelogar a waiver from the two-year cooling off period under Biden’s order. The Justice Department did not respond to requests to comment for this article.

The plaintiffs in the Harvard case allege that the university discriminates against Asian applicants and engineers the racial makeup of each incoming class. They pressed the Supreme Court to take up their appeal and ban the use of race in college admissions in February.

The High Court has already asked Prelogar’s office to participate in the case. Both sides filed legal briefs with the High Court over the spring and early summer. The Court asked the Justice Department for a recommendation as to whether to hear the case on June 14. Such a request is routine, and the Court did not set a deadline.

Prelogar was serving as acting solicitor general at that time. She stepped down from the role once her nomination was made official on Aug. 11. It’s not clear whether Prelogar played any role in crafting the department’s position during that period. Nor is it clear who will replace Prelogar as lead counsel for the government if she ultimately steps back from the dispute.

If the justices take up the appeal, the administration will almost certainly participate in the case before the High Court. The solicitor general’s office files legal briefs or appears for oral argument in about two-thirds of the Supreme Court’s cases. It’s also likely that the administration will back Harvard, supplementing the considerable resources the university has already brought to bear on the case. Seth Waxman, who was former president Bill Clinton’s solicitor general, is Harvard’s top lawyer.

Prelogar co-taught a course called "Supreme Court and Appellate Advocacy Workshop" in 2020, according to the law school’s course catalog. She served as a staff lawyer in the solicitor general’s office from 2014 to 2019 and took leave from that position to assist former special counsel Robert Mueller’s investigation. After leaving government service, she joined the law firm Cooley LLP, serving in the firm’s appeals practice.

At Cooley, Prelogar represented several major technology firms, including Facebook and Twitter, according to her financial disclosure. She also represented Jerry Yang, the cofounder of Yahoo. She earned just over $2 million from her partnership share at the law firm.

The Harvard case is No. 20-1199 Students for Fair Admissions v. President and Fellows of Harvard.