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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 2020 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.