12:01am

Thu March 31, 2011
Law

Solicitor General Nominee Grilled On Marriage Act

Republican anger over the Obama administration's decision not to defend the Defense of Marriage Act in court spilled over into a Senate confirmation hearing Wednesday. Before the Judiciary Committee were nominees for two top and long-vacant Justice Department jobs.

The Office of Legal Counsel advises the president about what he can and cannot do under the law. The job has not been filled with a confirmed officeholder for seven years.

Democrats opposed the Bush administration's choice, Steven Bradbury, because he had signed three controversial so-called "torture memos." And Republicans blocked President Obama's first nominee, Dawn Johnsen, because of her outspoken criticism of the same torture policies.

Obama's second nominee, noted appellate lawyer Virginia Seitz, had an unexpectedly easy time Wednesday at her confirmation hearing, largely because the focus was on another Justice Department nominee, Donald Verrilli.

If confirmed, Verrilli would become the solicitor general of the United States, the government's advocate in the U.S. Supreme Court.

Defense Of DOMA

The spark for the questions to Verrilli was Obama's decision not to defend the Defense of Marriage Act in court. The president and attorney general informed Congress last month that after two losses in the lower courts, the administration had decided not to appeal.

Republican senators noted that the tradition of the Justice Department is that the solicitor general defends laws enacted by Congress unless those laws impinge on presidential authority or no reasonable argument can be made on behalf of the law. DOMA does not involve presidential authority, and the senators argued that because the Justice Department previously defended the law, there obviously were reasonable arguments to be made.

Although Verrilli currently serves as White House counsel, fortunately for him, he was recused from the decision on DOMA because the law firm he once worked for is involved in the litigation. But that did not get him off the hook entirely.

Republican senators said it was crucial to know that Verrilli would act independently, as other solicitors general have done.

Sen. Orrin Hatch (R-UT) said he and others needed "a simple and clear answer" from Verrilli.

"If you believe reasonable arguments exist to defend a statute's constitutionality, but the attorney general or president says otherwise, will you defend the statutes or resign?" he asked.

Being 'Prepared To Say No'

Verrilli responded that he would "defend the statute unless instructed by [his] superiors not to do so."

Replied Hatch: "That is not a good answer."

But Verrilli refused to be drawn into a discussion of DOMA because, as he noted, he did not know the ins and outs of the case. And, he added, he could not answer the question "in the abstract. While "there [might be] circumstances in which I would feel that integrity and principle required me to resign," he said, not every disagreement would justify resignation.

Verrilli pointed to rare occasions when previous solicitors general have initially defended a law in the lower courts but refused to do so on appeal.

But Republicans were not appeased.

Alabama's Sen. Jeff Sessions gave Verrilli the following advice.

"You've got to be prepared to say no," he said, "and if you do, the politicians normally come around." Copyright 2011 National Public Radio. To see more, visit http://www.npr.org/.

Transcript

RENEE MONTAGNE, host:

Senate Republicans expressed their anger, yesterday, over the Obama Administration's decision not to defend in court the Defense of Marriage Act, which defines marriage as between a man and a woman. This didn't happen at a hearing on the act. It was a confirmation hearing for two top Justice Department jobs that've been vacant for a very long time. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The office of legal counsel advises the president about what he can and cannot do under the law. The job has not been filled with a confirmed officeholder for seven, yes, you heard me right, seven years.

Democrats opposed the Bush administration's choice, Steven Bradbury, because he had signed three controversial so-called torture memos. And Republicans blocked President Obama's first nominee, Dawn Johnsen.

Mr. Obama's second nominee, noted appellate lawyer Virginia Seitz, had an unexpectedly easy time yesterday at her confirmation hearing, largely because the focus was on another nominee, Donald Verrilli, who, if confirmed, would become the solicitor general, the government's advocate in the U.S. Supreme Court.

The spark for the questions to Verrilli was President Obama's decision not to defend DOMA, the Defense of Marriage Act, in court. Republican senators noted that the tradition of the Justice Department is that the solicitor general defends laws enacted by Congress, unless those laws impinge on presidential authority or there's no reasonable argument that can be made.

Although nominee Verrilli currently serves as deputy White House counsel, fortunately for him, he was recused from the decision on DOMA because the law firm he once worked for is involved in the legal challenge to the law.

That didn't get him off the hook, entirely, though. Republican senators said it was crucial to know that Verrilli would act independently, as other solicitors general have done. Here, for instance, is an exchange with Utah's Senator Orrin Hatch.

Senator ORRIN HATCH (Republican, Utah): I need a simple and clear answer to this. And I think others will need this. If you believe that reasonable arguments exist to defend a statute's constitutionality, but the attorney general or president says otherwise, will you defend that statutes or not - or resign?

Mr. DONALD VERRILLI (Nominee, Solicitor General): Senator, I would defend the statute unless instructed by my superior not to do so.

Senator HATCH: Well, see that's not a good answer.

TOTENBERG: But Verrilli refused to be drawn into a discussion of DOMA because, as he noted, he didn't know the ins and outs of the case.

Mr. VERRILLI: It's something that I just find impossible to answer in the abstract and I think the answer is, are there circumstances in which I would feel that integrity and principle require me to resign? Certainly. Yes. But is that every disagreement?

Unidentified Man: No. No.

Mr. VERRILLI: No.

TOTENBERG: Verrilli pointed to rare occasions when previous solicitors general have initially defended a law in the lower courts but refused to do so on appeal. But Republicans were not appeased. Alabama's Jeff Sessions.

Senator JEFF SESSIONS (Republican, Alabama): You've got to be prepared to say no. And if you do, the politicians normally come around. You don't have to do it publicly. You just tell him, Mr. President, you can not do that. Mr. Attorney General, I can not argue that way. You cannot do it. It's wrong. And usually they'll back down if you'll stand firm.

Nina Totenberg, NPR News, Washington.

(Soundbite of music)

MONTAGNE: This is NPR News. Transcript provided by NPR, Copyright National Public Radio.