Donald Verrilli, the Obama administration's nominee to be the next solicitor general, has told Senate Republicans unequivocally that he would resign if either the president or the attorney general ordered him to take a stance "based on partisan political considerations or other illegitimate reasons."
That declaration was among Verrilli's lengthy written responses to more than 100 written questions posed by Judiciary Committee ranking Republican member Sen. Charles Grassley, (R-Iowa), and others after Verrilli's March 30 confirmation hearing. The exchanges were posted online last week.
At the hearing, Verrilli embraced the solicitor general's long tradition of independence from political pressure as a way of preserving credibility with the Supreme Court, the primary audience for the SG's labors. But he also pointed out that the solicitor general answers to the attorney general and the president. After repeated questioning by Republicans, Verrilli acknowledged that he would resign if he was instructed by either boss to take a position that violated his principles or integrity.
But at the hearing and in the follow-up questions, Republicans indicated they thought that Verrilli was too deferential to his bosses and perhaps too slow to make his resignation pledge. "I am concerned that you do not fully appreciate the extent to which the office of the solicitor general must remain independent from both the attorney general and the president," Grassley wrote in one of his follow-up questions. In another, Grassley said Verrilli seemed "far less committed to being independent" than predecessor Elena Kagan pledged she would be in her 2009 confirmation hearing.
The backdrop of the Republicans' inquiry was Attorney General Eric Holder Jr.'s announcement in February that President Barack Obama and he had decided that Section 3 of the Defense of Marriage Act, which defines marriage as between a man and a woman, was unconstitutional and indefensible under a heightened scrutiny standard. Senators pressed Verrilli repeatedly to state that as solicitor general he would defend acts of Congress in almost any circumstance, and resign if told not to.
Verrilli's written response still stated that because of the decision made by Obama and Holder, no solicitor general "would have the authority" to defend the statute on that basis unless they had changed their minds or the state of the law had changed. "Whatever my independent judgment on the issue might have been," Verrilli wrote, "the President and the Attorney General have already made this particular decision."
But more generally, Verrilli said he expected both officials to respect his "independent judgment" and if they don't, "I am prepared to resign if they overrule my decision based on partisan political considerations or other illegitimate reasons, or an indefensible view of the law."
Significantly, Verrilli also told Grassley that he thought Section 3 of DOMA could be defended under the easier-to-meet "rational basis standard." Holder's February letter said the same thing, namely that if federal courts determined that the provision should be examined under the permissive rational basis standard rather than tougher "heightened scrutiny," then "a reasonable argument for Section 3's constitutionality may be proffered."
Whether Verrilli's answers mollify Senate Republicans won't be known for awhile. A vote on Verrilli's nomination has not been set, at least in part because of the volume and length of the written questioning.
Verrilli's answers to Grassley's 108 questions took up 95 mainly single-spaced pages. Some of the answers -- and the questions -- were repetitive. Republican senators Orrin Hatch, Jeff Sessions and Tom Coburn also posed similar written questions to Verrilli. But taken together, the exchanges amount to a remarkable treatise and dialogue on the role of the office of the solicitor general and its relationship to the president, the attorney general, and Congress. In one lengthy section, Verrilli was asked to analyze why the Justice Department decided not to defend federal statutes in 20 past Supreme Court cases.
Grassley also asked Verrilli for his views on issues ranging from the death penalty to abortion to the right to bear arms. Verrilli answered that his personal views would "play no role" in his determinations, and said he would respect high court precedents in these and other areas. On the Second Amendment question, for example, Verrilli said, "If confirmed, I will respect [D.C. v.] Heller and McDonald [v. Chicago] as binding authority that guarantees an individual Second Amendment right to bear arms."
In response to another Grassley question, Verrilli mentioned several cases in which he already knows he would recuse if confirmed as solicitor general, because of past representations while in private practice at Jenner & Block. One was General Dynamics v. United States, a case pending before the high court on the state secrets privilege. Verrilli said he represented a client against the United States in the case. Harkening back to his telecom clients, Verrilli also said he would recuse in matters relating to the Viacom v. YouTube copyright case before the U.S. Court of Appeals for the 2nd Circuit. Finally, Verrilli said he would bow out of any discussions of the case of Jose Padilla, convicted on charges of aiding terrorists. Verrilli said he filed an amicus curiae brief in Padilla's appeal before the 2nd Circuit.