The invaluable Amy Howe of SCOTUSBlog points us to reports that the president*’s pick for Solicitor General is a D.C. attorney named Charles Cooper. My guess? Way out on a limb here, but, if he does get picked, I don’t think his confirmation process is going to be a smooth one.
Cooper is a close friend of Sen. Jeff Sessions, the Alabama lawmaker whom Trump has nominated to serve as attorney general, and helped to prepare Sessions for his confirmation hearings. Like Sessions, Cooper could prove to be a controversial pick. In addition to his role defending California’s ban on same-sex marriage, Cooper also signed a brief on behalf of the federal government supporting Bob Jones University in its challenge to the constitutionality of an Internal Revenue Service policy denying tax exemptions to religious institutions that discriminate based on race. The university had argued that its ban on interracial dating was based on its sincere religious beliefs, but the Supreme Court upheld the IRS policy, by a vote of 8-1. And in 1986, as the head of the Office of Legal Counsel, Cooper signed an OLC opinion that argued that employers could reject job applicants with AIDS if they were concerned about contracting the disease.
Bob Jones University v. United States was one of the more odious episodes in the history of the Reagan Justice Department. BJU is a radical fundamentalist Christian college in Greenville, South Carolina. Its policies forbade even interracial dating for what the university claimed were Biblical grounds. In 1970, the IRS stripped the tax exemption from universities that practiced racial discrimination on any grounds whatsoever. BJU—along with a Christian academy in North Carolina—sued for reinstatement because it claimed…wait for it…that its “religious liberty” had been violated.
In 1982, once the Reagan people were heavily ensconced in their new jobs, the federal government under then-AG William French Smith abruptly changed sides and lined up with the discriminatory institutions. This confusion obviated any possibility of a settlement and the case went to the Supreme Court where the schools, and the Reagan Justice Department got waxed, 8-1, with only Associate Justice William Rehnquist dissenting.
I trust I don’t have to point out all the echoes from this case that resound to this day, and now we might have one of the amici who sided with the Reagan DOJ as solicitor general. (And he’s a good friend of Jefferson Beauregard Sessions III! Whodathunk that?) It’s hard to imagine that the president* knows any of this history, and even harder to imagine that he gives a flip about it. I would make the Toby Ziegler Bet that this is one of the staffing decisions that he’s subcontracted out to Heritage and/or the Federalist Society.
And that brings the conservative philosophy of ni shagu nazad back into play. Nothing is ever settled if they don’t want it to be, and that includes racial progress, as we are learning again to our dismay this week. If the people who celebrated gay marriage don’t up their defense, these guys will be coming for that, too. They still haven’t gotten over Loving v. Virginia, for god’s sake.