Solicitor General Choice Supports Process in DOMA Decision
By Andrew Ramonas | March 30, 2022 6:07 pm

This story has a clarification.

President Barack Obama’s choice for Solicitor General attempted to assure senators at his confirmation hearing Wednesday that the administration based its decision not to defend the Defense of Marriage Act in court on law and not politics.

Donald Verrilli, who was one of three Justice Department nominees testifying before the Senate Judiciary Committee, faced a barrage of questions stemming from the DOJ’s announcement last month that it no longer would defend the 1996 law that restricts the definition of marriage as a union between a man and a woman. Verrilli, who has held various legal posts in the Obama administration, said his interactions with the DOJ and White House have left him with a significant amount of confidence that the DOMA decision was based on the law.

Donald Verrilli (photo by Andrew Ramonas/Main Justice)

But the nominee said he did not have “any developed sense about the legal analysis or issues” because he was recused from working on the matter as deputy counsel to Obama. He previously worked at the law firm of Jenner & Block LLP, which was involved in litigation challenging DOMA. An Obama administration ethics pledge prohibits officials from working on matters in which a former employer was involved for two years. He left the law firm in January 2009.

Verrilli said that if he is confirmed as Solicitor General he would defend all laws in court unless the executive branch believes a statute infringes on the power of the president or a sensible defense of the law is impossible. He said the exceptions are highly unusual.

“I understand very well that the Solicitor General has responsibilities to this co-equal branch government, the Congress, and that at the core of that responsibility is to defend statutes that this body enacts,” Verrilli said. “If I am confirmed, I will apply the same standard that Solicitors General have applied historically and the Department of Justice applies.”

Senators pushed Verrilli on whether he would be prepared to stand up to superiors, even going as far as submitting his resignation if he disagreed with an order. Verrilli said he would be ready to stand up to his bosses, resigning if necessary.

“I think the point of the questioning you received is that it needs to be clear to this committee that you understand that the responsibilities of a Solicitor General can very well put you in that position,” Sen. Sheldon Whitehouse (D-R.I.) said. “You need to be willing, when those circumstances are appropriate, to take that step as necessary.”

Despite the tough line of questions for Verrilli, senators expressed their support for the nominee. Sen. Orrin Hatch (R-Utah) said Verrilli has a “tremendous background” and “tremendous experience.”

“I’m not trying to get you to resign,” Hatch said. “I’m trying to get you in there as Solicitor General.”

Verrilli, who was nominated Jan. 26, would succeed Elena Kagan, who became an Associate Justice on the Supreme Court in August. Neal Katyal has served as acting Solicitor General since Obama nominated Kagan to the court in May 2010.

Nominees Virginia Seitz for the Office of Legal Counsel and Denise O’Donnell for the Bureau of Justice Assistance also received praise from the senators present.

If confirmed, Seitz, who was nominated Jan. 5, would be the first Assistant

Virginia Seitz (photo by Andrew Ramonas/Main Justice)

Attorney General endorsed by the Senate to lead the OLC since 2004, when Jack Goldsmith resigned after running into disputes with other George W. Bush administration officials about their aggressive post-Sept. 11 national security policies. Principal Deputy Assistant Attorney General Caroline Krass currently leads the office.

Seitz is Obama’s second nominee for the job. The first Obama nominee for the post, Dawn Johnsen, withdrew in April 2010 after more than a year of Republican criticism about her pro abortion-rights views and aversion to the George W. Bush administration’s national security policies.

The OLC gives legal advice to the president and other administration officials on various issues, including national security matters. The office was in the middle of the tense dispute over the use of harsh interrogation techniques against terrorism suspects, techniques critics called torture.

Denise O'Donnell (photo by Andrew Ramonas/Main Justice)

O’Donnell has been nominated twice for Bureau of Justice Assistance Director. She was first nominated on Dec. 13 and never came before the Senate Judiciary Committee before the Senate adjourned sine die on Dec. 22. She was renominated Jan. 5.

The nominee would replace acting Director James H. Burch II, who has led the bureau since Domingo S. Herraiz resigned in 2009.

The Bureau of Justice Assistance provides local, state and tribal law enforcement with funds and support for their initiatives.

Clarification: This story has been clarified to make it clear that Donald Verrilli supports the process used in the administration’s decision not to defend the Defense of Marriage Act in court.


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