The Senate Judiciary Committee on Thursday approved the nomination of Donald Verrilli for Solicitor General.
The panel voted 17-1 to report him out of committee. Sen. Jeff Sessions (R-Ala.) was the only senator to vote against the nominee.
Sessions expressed concern about the nominee’s involvement in terrorism cases, including his decision to advocate for Jose Padilla, a U.S. citizen classified as an “enemy combatant” in 2002 by the George W. Bush administration. As an “enemy combatant,” the Bush administration argued, the government could bar him access to a lawyer and incarcerate him indefinitely without a trial.
Verrilli joined three lawyers in signing a friend-of-the-court brief presented to the 2nd U.S. Circuit Court of Appeals that said Padilla was “entitled to due process of law in the form of a fair hearing in front of a neutral and independent judge.”
Sessions said Verrilli’s positions on terrorism matters, coupled with the views of Justice Department officials on terrorism issues, including Attorney General Eric Holder’s support for trying some terrorism suspects in civilian courts, make him uneasy about the nominee.
“If it hadn’t been for the pattern of appointments, I don’t think I would feel obligated to vote no,” said Sessions. “But as I’ve indicated, I’m just not going to continue to support nominees to the Department whose views on the War of Terrorism I think are unsound and incompatible to what Congress has in place.”
Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said Verrilli’s involvement in the Padilla case amounted to 12 hours of work. He also noted that the brief was neutral on whether Padilla had the rights of a criminal defendant but questioned whether a U.S. citizen held by the military had the right to petition for a writ of habeas corpus and the right to have a lawyer.
“As an American citizen, I would hate to think that if I was ever held in detention, whether by civil authorities or military authorities, I wouldn’t have the right to talk to a lawyer and I wouldn’t have the right to” the writ of habeas corpus, Leahy said.
Despite almost unanimous approval for Verrilli in committee, the top panel Republican said he offered only “lukewarm support” for the nominee.
Sen. Charles Grassley (R-Iowa), the committee’s ranking member, said he had concerns about how Verrilli viewed the Solicitor General post.
At his nomination hearing, Verrilli faced tough questioning from Republicans over the Obama administration’s decision not to defend the Defense of Marriage Act in court.
He said the decision was based on the law and not politics. Verrilli also said as Solicitor General he would defend all laws in court unless the executive branch believes a statute steps on the authority of the president or a rational defense of the law is impossible. But the nominee said he would be willing to stand up to superiors — even going as far as tendering his resignation — if he was against an order.
Grassley said he was reassured by Verrilli’s responses to questions he submitted to the nominee about the independence of the Solicitor General. Verrilli said he would step down if he was told to carry out an order for a partisan, political or other illegitimate reason.
“My less than enthusiastic vote for Mr. Verrilli to be Solicitor General is limited to that office alone,” Grassley said. “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.”