Senate Republicans sharply questioned Solicitor General nominee Donald Verrilli Jr. on Wednesday over the Obama administration's decision in February to no longer defend the Defense of Marriage Act, which defines marriage as between a man and a woman.
Speaking at his Judiciary Committee confirmation hearing, GOP senators challenged Verrilli (pictured at left) to say whether he agreed with the administration's decision, and whether, as the administration's top lawyer before the Court, he would re-examine it. They also asked him whether, in future cases as solicitor general, he would have the independence to stand up to a president or attorney general who tells him not to defend a law that he believes is legally defensible.
"You've got to be prepared to say no," Sen. Jeff Sessions, (R-Ala.) told Verrilli pointedly. Sessions said the administration's change in course, announced in this letter from Attorney General Eric Holder Jr., "really hit me hard" and was "one of the most dispiriting things" the Obama administration had done.
Verrilli, currently deputy White House counsel and a longtime appellate litigator, sidestepped many of the questions by revealing that he had recused himself from deliberations over the issue because government ethics rules barred him for two years from participating in cases in which his prior employer has been active. Jenner & Block, where Verrilli was a D.C. partner until 2009, represented a party in one of the cases challenging the Defense of Marriage Act, Verrilli told the senators.
But Republican senators persisted, with Sen. Orrin Hatch, (R-Utah) pressing Verrilli to say what he would do as solicitor general "if you believe fair arguments can be made" in defense of an act of Congress, but the attorney general and the president think otherwise.
"I would defend the statute unless instructed to do otherwise," said Verrilli, prompting this response from Hatch: "That is not a good answer." Hatch said, "A lot of us were pretty upset" that the administration "played a political card rather than a legal card" when it came to defending the law. After several more questions on the subject, Verrilli finally acknowledged that he could conceive of a situation where he might decide to resign if following orders from a resident or attorney general would violate his principles or integrity. "It's impossible to imagine in the abstract," he said.
At other points in the hearing, Verrilli said he would honor and continue the SG's long tradition of independence and a presumption of defending acts of Congress, with two exceptions: if a law is "an incursion" on executive power, or if there is "no reasonable argument that can be made" in its defense. But several senators pointed out that prior and current administrations had previously made "reasonable arguments" in defense of DOMA. "You don't get to pick and choose the statutes you defend," said Sen. Charles Grassley, (R-Iowa.)
GOP senators also appeared unsatisfied with Verrilli's observation that, as solicitor general, he is carrying out the responsibilities of the attorney general. "I would give my best advice to the attorney general" about defending statutes, he said.
Senate Democrats rallied to Verrilli's defense, with Sen. Sheldon Whitehouse, (D-R.I.) who chaired the hearing, stating that "it is not the business of a solicitor general to relitigate" decisions made in the past, like the decision not to defend DOMA. Sen. Patrick Leahy, (D-Vt.) also said prior administrations had also changed course on defending statutes.
Sen. Richard Blumenthal, (D-Conn.) introduced Verrilli to the committee as a "superbly qualified' candidate who had grown up in Connecticut. He released a letter from eight lawyers who have served as SG since 1985 (all except now-Justice Elena Kagan) endorsing Verrilli, and another letter of praise from a bipartisan group of appellate advocates including Latham & Watkins' Maureen Mahoney, Gibson Dunn & Crutcher's Miguel Estrada, Christopher Landau from Kirkland & Ellis, Patricia Millett of Akin Gump Strauss Hauer & Feld, Sri Srinivasan of O'Melveny & Myers and Clifford Sloan of Skadden, Arps, Slate, Meagher & Flom.
Verrilli was asked about his stance on the death penalty, given his extensive pro bono work on behalf of the right to counsel for criminal defendants including those on death row. "There is a federal death penalty," Verrilli said, and "I would certainly and vigorously defend the application of the federal death penalty law."
The Judiciary Committee also questioned two other nominees (pictured below with Verrilli) for top Justice Department posts: Sidley Austin partner Virginia Seitz, for the position of assistant attorney general for the Office of Legal Counsel, and Denise O'Donnell, a New York state criminal justice official, as director of the bureau of justice assistance. They received few questions and generated no controversy. Several senators, noting that Seitz's position has not been filled by a Senate-confirmed nominee since 2004, urged her to repair the office's standing within the Justice Department.
Photos by Diego Radzinschi