Donald B. Verrilli, Jr., to be Solicitor General of the United States
Monday, June 6, 2011 

Mr. President:

I will vote to confirm Donald B. Verrilli, Jr., to be Solicitor General of the United States, but I do so with little enthusiasm.  Mr. Verrilli has impressive credentials and noteworthy accomplishments.  In addition to his government service in the White House Counsel's Office and at the Department of Justice, he has been a litigator in private practice for more than 20 years. He has argued twelve cases, and participated in more than 100 cases, before the Supreme Court of the United States.  Mr. Verrilli served for over fifteen years as an adjunct professor of constitutional law at the Georgetown University Law Center.  He clerked for Associate Justice William J. Brennan, Jr., of the United States Supreme Court, and Judge J. Skelly Wright of the United States Court of Appeals for the District of Columbia Circuit.

My concern with this nomination is whether or not the nominee will demonstrate appropriate independence in the office.  His testimony at his hearing raised doubts about his ability and commitment to uphold that principle. Mr. Verrilli seemed to buy into the notion that he was still the President's lawyer.  He gave lip service to the two traditional exceptions to the Solicitor General defending a statute - first, if the statute violates separation of powers by infringing on the President's constitutional authority; and second, if there is no reasonable argument that can be advanced in defense of the statute.  Mr. Verrilli then appeared to create a third exception - one that is not supported by practice or tradition.  He stated he would defend a statute's constitutionality "unless instructed by my superior not to do so."

This position advocated by the nominee - that interference in the rule of law, by the President or by the Attorney General, is an appropriate reason not to defend statutes - was extremely troubling to me and other members of the Committee.  That position is not the standard of the office.  It is not what the nation expects from its Solicitor General. His response gave me great pause about supporting his nomination.

Following his hearing, I gave Mr. Verrilli ample opportunity to address my concerns.  In extensive written questions I asked the nominee to review and comment on testimony given by previous Solicitor General nominees.  In particular, I asked many questions regarding statements by prior Solicitors General regarding the independence of the office.  I asked him to review cases where the Department of Justice had made a determination not to defend a statute.  I asked him to analyze those cases as to the rationale for not defending the statute.  In addition, I asked him to review and comment on a number of Supreme Court cases that address serious constitutional issues.

I reviewed his answers to my written questions for the record.  I commend Mr. Verrilli for his serious approach to the task of providing responses.  In most cases he gave thoughtful answers.  In many instances he declined to provide his views on the topic, but gave general assertions that he would follow the law. In other instances he claimed confidentiality.  I do not agree with his assertion of confidentiality in most of the instances where he raised that as a basis for not responding.  In other circumstances, such a response would be unacceptable.  In the past, such responses, or allegations of similar responses, have resulted in a failed confirmation or withdrawal of the nomination.

Based upon my review of his responses, I am more comfortable with the notion that Mr. Verrilli understands the duty of the Solicitor General. I believe, because of my questions and the time he spent contemplating the issues, he will be a better Solicitor General than he otherwise would have been.  Mr. Verrilli has been exposed to decades of thought and experience by this review.  On the whole, I concluded that Mr. Verrilli now has a greater sensitivity to the necessity of independence in the office.  In numerous answers he provided a much better response than he did at his hearing.  He indicated he would not lend his name or that of the office to carry out any order which he believed to be based on partisan political consideration or other illegitimate reasons.  Rather than do so, he said he would resign from office.  I will hold him to that pledge.

I want to be clear about my tepid support for Mr. Verrilli.  He is nominated to an executive branch position, not a lifetime appointment.  My lukewarm support is based largely on the nature of the office to which he will be appointed, if confirmed.

I will put the administration on notice, as well as Mr. Verrilli, the Senate, the media, and any other interested party.  My less than enthusiastic vote for Mr. Verrilli to be Solicitor General of the United States is limited to that office alone.  No entity or individual should presume my support for Mr. Verrilli for any other future office to which he may aspire or to which he may be nominated - be it in the executive, judicial, or legislative branch of government.

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