A federal statute passes through a number of distinct processes before its meaning is settled. Congress originally authors it, executive officials then apply and defend it, and courts decide what it means when the parties disagree. Each institution approaches the same text from often very different vantage points.
The lawyers in each setting likewise work for very different institutional actors. A judicial clerk works for a judge who must decide the case; a government litigator works for the United States, which is trying to win it; and committee counsel works for members deciding whether the law should change in the first place.
For Ben Miller-Gootnick, a Washington, D.C.-based attorney, those settings have formed part of a career across all three branches of the federal government. He clerked in the federal courts, served as a Bristow Fellow in the Office of the Solicitor General, and worked as counsel on the Democratic staff of the House Committee on the Judiciary.
The Federal Courts and Judicial Decisionmaking
Ben Miller-Gootnick’s judicial experience includes clerkships on a federal district court and a federal court of appeals. A district court is often the first court to read a statute applied to a concrete set of facts. It hears evidence, decides what happened, and determines how the law applies, frequently without an appellate decision on point to guide it. Its ruling can end the dispute and result in an at least initial interpretation of the law, though the losing party may appeal.
A court of appeals, by contrast, works based on a fixed trial-court or agency factual record. It does not hear new witnesses; it asks whether the trial court interpreted the law correctly, applied the right legal standard, followed proper procedures, and applied the law properly to the facts it found. Its decisions also bind the district courts beneath it, so its reading of a statute governs future cases as well as the one in front of it.
Law clerks help judges research and draft, and the work varies from chambers to chambers. Whatever the chambers, though, the clerk works for a neutral decisionmaker: the job is to test each side’s arguments, not to advance either one. Clerking at both levels showed Miller-Gootnick the same kinds of questions at two stages, first as live disputes over facts and then as arguments about law based on a set factual record.
The Executive Branch and the United States’ Views
A lawyer for the government comes to a case as an advocate. Their task is to persuade a court to adopt the United States’ position, based on the record and applicable federal law.
Ben Miller-Gootnick’s federal appellate background included a year as a Bristow Fellow in the Office of the Solicitor General at the Department of Justice, which conducts and supervises the government’s litigation in the Supreme Court. Fellows assist the office’s attorneys preparing Supreme Court briefs and recommendations to the Solicitor General regarding authorization of government appeals.
Moving from chambers to a litigating office reverses the lawyer’s starting point. A clerk begins with the question and works toward an answer; an advocate begins with the client’s position and builds the strongest case for it.
For the United States, that often means defending a particular reading of a federal statute. The government’s interpretation competes with others before the Court, and its lawyers must answer opposing arguments and the questions the Justices raise from the bench. Because the government appears in so many cases, a position it takes in one can constrain it in the next, so the office weighs an argument’s long-term consequences as well as its chances in the case at hand.
The office also acts as a supervisor of the rest of the government’s litigation. The Solicitor General must approve any appeal the United States takes from an adverse lower-court decision, as well as government amicus curiae (“friend of the court”) briefs in the courts of appeals, so the office decides which fights are worth having in addition to deciding how to argue them.
Congress and Law Beyond the Courtroom
Miller-Gootnick later served as counsel on the Democratic staff of the U.S. House Committee on the Judiciary. Under the House rules, the committee’s jurisdiction covers the federal courts and judicial proceedings, administrative practice and procedure, and statutes involving presidential succession.
Committee lawyers work on both new legislation and oversight of how existing laws are functioning. The committee may hold hearings, debate the text, and vote on amendments at a markup before deciding whether to report legislation to the full House.
The question there is different from the one a court faces. A court must take the law as it finds it; legislators can decide that the law should be different. A lawyer’s job in that setting is to anticipate how new language will interact with statutes already on the books, how courts are likely to read it, and whether it fits within Congress’s constitutional authority.
Hearings bring outside perspectives into that analysis. Members may hear from executive-branch officials, academics and practitioners, and people directly affected by a proposal, and their testimony can expose ambiguities or gaps in a bill’s language before it becomes law.
Before joining the committee, Ben Miller-Gootnick worked in private practice, focusing on federal appellate litigation and on congressional investigations, which offered a view of congressional oversight from outside the institution. The committee role meant he had now worked inside each of the three branches.
Ben Miller-Gootnick’s Scholarship on Presidential Succession
Ben Miller-Gootnick’s public service experience spans institutions that encounter federal law at different points. His published scholarship also examines how the powers of those institutions relate to one another, including in the laws governing presidential succession.
In a 2020 Lawfare essay, Ben Miller-Gootnick examined the statute governing succession if both the president and vice president cannot serve. His essay examined the Presidential Succession Act of 1947, which places the speaker of the House and the president pro tempore of the Senate ahead of Cabinet officers in the line of succession.
The Constitution’s Succession Clause lets Congress declare by law “what Officer shall then act as President,” but it does not define that term. The authors described a powerful, though not airtight, argument that congressional leaders are not “Officers” in the relevant sense, while acknowledging that the question is contested.
The essay did not try to settle the constitutional question. Its concern was practical: a dispute over who holds the presidency would be most dangerous in exactly the kind of emergency that triggers the statute. The authors recommended that Congress remove its own leaders from the line of succession, while acknowledging that the Constitution may not require that result.The authors also considered whether courts could resolve a dispute quickly, noting that a court might treat the constitutional question as itself a nonjusticial political question. Their analysis connects congressional authority to establish a line of succession with the need for continuity in the executive branch and the possibility that a judicial resolution could be delayed or unavailable.
About Ben Miller-Gootnick
Ben Miller-Gootnick is a Washington, D.C.-based lawyer who has worked in all three branches of the federal government. He clerked on trial and appellate courts and served as a Bristow Fellow in the Office of the Solicitor General at the U.S. Department of Justice.
New: In private practice, he focused on federal appellate litigation and congressional investigations. He later served as counsel on the Democratic staff of the U.S. House Committee on the Judiciary.
Ben Miller-Gootnick graduated magna cum laude from Harvard Law School, where he served as an Executive Editor of the Harvard Law Review.
Readers can learn more through Ben Miller-Gootnick’s personal website. His scholarship addresses questions of public law, including federal appointments and congressional authority.