The Next Robert Mueller ... or a Liberal Brett Kavanaugh?
WHY YOU SHOULD CARE
With a résumé like the conservative justice, she could be the left’s answer to Brett Kavanaugh.
By Nick Fouriezos
Shakespeare couldn’t have written two better foils when Elizabeth Prelogar and Brett Kavanaugh squared off in a makeshift courtroom that December night in 2016. The former Miss Idaho was a prosecutor — an appellate attorney to the U.S. solicitor general — and a Democrat who had donated to the presidential campaigns of Barack Obama and Hillary Clinton. Kavanaugh, then a judge with the D.C. Circuit Court of Appeals, was a member of the conservative Federal Society who would later spark liberal outrage with his appointment to the Supreme Court by Donald Trump.
Despite their differences, fate had brought them to Washington’s Shakespeare Theatre Company for a mock trial of Friar Laurence for the “wrongful death” of Romeo and Juliet. And through the comedic evening, their similar wit emerged. When Prelogar introduced Taylor Swift’s “Love Story” into the record, Kavanaugh noted that the song replaced Shakespeare’s tragic ending with a happy one. “This court can’t rewrite history like that — we’re not the Ninth Circuit,” he said, a dig at the West Coast appellate court’s progressive bent. “They have tried to impugn [the friar’s] character. And to that I say: When they go low, he goes high. Really, really high. He’s with Him,” Prelogar said, pointing to the heavens with a political nod (to Michelle Obama) of her own.
If all the world is a stage, then Prelogar is poised to become one of its major players. The 39-year-old fluent Russian speaker worked as a top prosecutor for special counsel Robert Mueller in his investigation into Moscow’s meddling in the 2016 election while on loan from the U.S. Solicitor General’s office, reportedly tasked with research and interviewing key witnesses. Before that, she clerked for Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan. Kavanaugh, too, clerked on the highest court (for Justice Anthony Kennedy) before serving on a special counsel investigation (for Ken Starr’s Bill Clinton probe). Which makes it worth wondering: Is Prelogar headed toward a future that looks more like Mueller’s or Kavanaugh’s?
She’s made Forrest Gump–like cameos in the lives of those making news in national politics today.
“There are several facets that are important to presidents when they nominate — and some of that dovetails with Elizabeth,” says Adam Feldman, a court scholar who runs the blog Empirical SCOTUS (neither Prelogar nor the solicitor general’s office responded to requests for comment).
While any such forecast is fraught with hypotheticals, Prelogar seems poised for a possible judgeship or a long career as a prosecutor, particularly under a potential future Democratic president. She has already argued six Supreme Court cases since 2014, including the historic first argument of the 2016 term, which had an equal number of men (five justices) and women (three justices, two attorneys) considering a case bearing on the issue of double jeopardy in Bravo-Fernandez v. United States. The year prior, less than 20 percent of the lawyers appearing before the court had been women. Feldman is aware of only one other instance where women stood on equal footing with men in a Supreme Court case. That experience, plus her youth, is an advantage. “The legacy aspect is big,” Feldman notes: Presidents want to see their picks stay on the court for decades.
“She definitely has a stage presence that is not typical for a high-powered lawyer … she is personable, has a lot of wit,” says David Lat, the founder of the legal profession news site Above the Law, who has met Prelogar and followed her career. Her work at high-powered law firm Hogan Lovells could pay off during a confirmation, Lat says, when she can retort to Republicans: “How much of a leftist can I be?”
Still, the donations to Obama and Clinton could hurt her if she ever faces a nomination process from a Republican Senate, or if she’s ever considered as a Mueller-style, nonpartisan figure to investigate a president. And before she gets on any Supreme short lists, she’d likely need to serve time as a judge to show the kind of reliable ideological bent presidents have come to count on for their high court nominees.
Regardless, there is time for Prelogar to don a judge’s robes — a far cry from the gowns she wore years ago as a head-turning beauty queen. She shone there, too, winning the “Triple Crown” of pageants: Miss Teen Idaho (1998), Miss Idaho USA (2001) and Miss Idaho (2004). As a slogan-bearer for the state, Prelogar honed her voice, showing a particular softness to the children she met. “As long as I brought the crown with me, it was easy to get them to listen,” she told Emory College, where she was an undergraduate, after becoming a Rhodes Scholarship national finalist in 2002. “Then afterward, they would all want to try it on — even the boys.”
Following a master’s in creative writing at the University of St. Andrews in Scotland, she was accepted to Harvard Law — but deferred to pursue a yearlong Fulbright Scholarship in St. Petersburg, where she won an Overseas Press Club Foundation award for an essay documenting censorship of the Russian press. Her interest stemmed from wanting to read the great Russian authors in their native language. “Now I can read poetry in the original, which is wonderful because in poetry especially so much is lost in translation,” she told Emory.
An interesting twist to Prelogar’s story is her Forrest Gump–like cameos in the lives of those making news in national politics today. She was a contender in the 2001 Miss USA contest where Trump (who owned the competition as part of the Miss Universe umbrella) was later accused of purposefully walking in on half-dressed and naked contestants on multiple occasions. And before working for Ginsburg and Kagan, Prelogar clerked for Merrick Garland, the D.C. Circuit Court judge Republicans famously refused to consider for the Supreme Court in 2016.
Those instances, in addition to her comedic bout with Kavanaugh and others, matter more than mere kismet. They illuminate her status as a capital insider, Feldman says, which bodes well for her chances of being nominated to the D.C. Circuit one day — a feeder for the highest court: “If that’s an interest of hers, she knows the right people.” Soon her mock court sparring could become Washington reality.
Read more: What’s next for the special counsel?