The Senate Judiciary Committee held a confirmation hearing Tuesday for Elizabeth Prelogar, who is President Biden’s pick for Solicitor General.
Mrs. Prelogar has been serving as the Justice Department’s fourth-ranked lawyer in an acting capacity since January, during which time she has argued two cases before the high court.
Sen. Tom Cotton, Arkansas Republican, pressed Mrs. Prelogar on one of the cases — Terry v. U.S., which centered on whether the First Step Act of 2010 allows repeat crack cocaine offenders to have their sentences reduced.
Mrs. Prelogar initially argued that the Act does not allow low-level offenders to receive sentencing relief, but changed the government’s position on the day she was supposed to file her legal brief.
“You confessed error saying the department had been wrong all along,” Mr. Cotton said.
He added that the Supreme Court rejected the government’s new argument and ruled 9-0 that the sentencing reduction can only apply to offenders convicted of a prior offense that triggered a mandatory minimum sentence.
“How did your office get it so wrong?” the senator asked.
Mrs. Prelogar said it was a “very difficult decision” and noted that “circuit judges appointed by both political parties have disagreed” on the sentencing issue.
“Ultimately, after looking at all the tools of statutory construction the text of the provision — the context of the purpose — it was my judgment that Congress had intended to extend that sentencing relief to the low level offenders,” she said.
Senators can submit more questions for Mrs. Prelogar through Sept. 21.
If confirmed by the Senate, the appellate attorney would become the second woman to hold the position on a permanent basis. Supreme Court Justice Elena Kagan — for whom Mrs. Prelogar clerked — was the first woman to hold the position, from 2009 to 2010.
A Harvard Law School graduate, Mrs. Prelogar also clerked for the late Justice Ruth Bader Ginsburg and then-Judge Merrick Garland, who is now the U.S. attorney general.
She served as an assistant to the solicitor general from 2014 to 2019 and was tapped to assist then-special Counsel Robert Mueller in his investigation of Russian meddling in the 2016 U.S. presidential election.