[Senate Hearing 112-430]
[From the U.S. Government Publishing Office]
S. Hrg. 112-430
CONFIRMATION HEARING ON DONALD B. VERRILLI, JR., OF CONNECTICUT,
NOMINEE TO BE SOLICITOR GENERAL OF THE UNITED STATES; VIRGINIA A.
SEITZ, OF VIRGINIA, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF
LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE; AND DENISE E. O'DONNELL, OF
NEW YORK, NOMINEE TO BE DIRECTOR, BUREAU OF JUSTICE ASSISTANCE, U.S.
DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
----------
MARCH 30, 2011
----------
Serial No. J-112-13
----------
Printed for the use of the Committee on the Judiciary
S. Hrg. 112-430
CONFIRMATION HEARING ON DONALD B. VERRILLI, JR., OF CONNECTICUT,
NOMINEE TO BE SOLICITOR GENERAL OF THE UNITED STATES; VIRGINIA A.
SEITZ, OF VIRGINIA, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF
LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE; AND DENISE E. O'DONNELL, OF
NEW YORK, NOMINEE TO BE DIRECTOR, BUREAU OF JUSTICE ASSISTANCE, U.S.
DEPARTMENT OF JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
MARCH 30, 2011
__________
Serial No. J-112-13
__________
Printed for the use of the Committee on the Judiciary
_____
U.S. GOVERNMENT PRINTING OFFICE
74-503 PDF WASHINGTON : 2012
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 4
prepared statement........................................... 411
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 3
Schumer, Hon. Chuck, a U.S Senator from the State of New York,
prepared statement............................................. 457
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 1
PRESENTERS
Blumenthal, Hon. Richard, A U.S. Senator from the State of
Connecticut presenting Donald B. Verrilli, Jr., Nominee to be
Solicitor General of the United States......................... 10
Carper, Hon. Thomas R., a U.S. Senator from the State of Delaware
presenting Virginia A. Seitz, Nominee to be Assistant Attorney
General, Office of Legal Counsel, U.S. Department of Justice... 7
Coons, Hon. Christopher A., a U.S. Senator from the State of
Delaware presenting Virginia A. Seitz, Nominee to be Assistant
Attorney General, Office of Legal Counsel, U.S. Department of
Justice........................................................ 9
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Denise E., O'Donnell, Nominee to be Director,
Bureau of Justice Assistance, U.S. Department of Justice....... 5
STATEMENTS OF THE NOMINEES
O'Donnell, Denise E., Nominee to be Director, Bureau of Justice
Assistance, U.S. Department of Justice......................... 145
biographical information..................................... 146
Seitz, Virginia A., Nominee to be Assistant Attorney General,
Office of Legal Counsel, U.S. Department of Justice............ 88
biographical information..................................... 89
Verrilli, Donald, B., Jr., Nominee to be Solicitor General of the
United States.................................................. 14
biographical information..................................... 16
QUESTIONS AND ANSWERS
Responses of Denise E. O'Donnell to questions submitted by
Senators Leahy, Coburn and Grassley............................ 227
Responses of Virginia A. Seitz to questions submitted by Senators
Grassley and Sessions.......................................... 243
Responses of Donald B. Verrilli to questions submitted by
Senators Grassley, Hatch, Sessions, Coburn and ACLU v. NSA
Amicus......................................................... 254
SUBMISSIONS FOR THE RECORD
Beckner, C. Frederick, III, Sidley Austin LLP, Washington, DC,
February 28, 2010, letter...................................... 396
Berenson, Bradford A., Sidley Austin LLP, Washington, DC,
February 3, 2011, letter....................................... 398
Carper, Hon. Thomas, a U.S. Senator from the State of Delaware,
prepared statement............................................. 400
Carvin, Michael A., Jones Day, Washington, DC, February 10, 2011,
letter......................................................... 404
Fitzpatrick, Brian, Vanderbilt Law School, Nashville, Tennessee,
February 1, 2011, letter....................................... 406
General Counsels of 30 Businesses, March 28, 2011, joint letter.. 407
Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New
York, prepared statement....................................... 410
Jorgensen, Jay T., Sidley Austin LLP, Washington, DC, March 29,
2011, letter................................................... 426
Landau, Christopher, Kirkland & Ellis LLP, Washington, DC,
January 12, 2011, letter....................................... 428
Lieberman, Hon. Joseph, a U.S. Senator from the State of
Connecticut, prepared statement................................ 430
Keisler, Peter D., Sidley Austin LLP, Washington, DC, February 9,
2011, letter................................................... 432
Klingler, Richard, Sidley Austin LLP, Washington, DC, February 7,
2011, letter................................................... 435
Mahoney, Maureen E., Latham & Watkins LLP, Washington, DC,
February 11, 2011, letter...................................... 437
Major County Sheriffs' Association, Douglas C. Gillespie,
Sheriff, Alexandria, Virginia, January 21, 2011, letter........ 439
Nager, Glen D., Jones Day, Washington, DC, February 7, 2011,
letter......................................................... 440
National Chamber Litigation Center (NCLC), Robin S. Conrad,
Executive Vice President, Washington, DC, February 11, 2011,
letter......................................................... 442
National Criminal Justice Association (NCJA), Kristen Mahoney,
President, Washington, DC, April 27, 2011, letter.............. 444
National Women's Law Center, Nancy Duff Campbell, Co-President,
and Marcia D. Greenberger, Co-President, Washington, DC,
February 24, 2011, joint letter................................ 445
O'Donnell, Denise E., Nominee to be Director, Bureau of Justice
Assistance, U.S. Department of Justice, statement.............. 447
Office of Legal Counsel, Republican and Democratic
Administrations, Lawyers, March 15, 2011, joint letter......... 448
Otis, Lee Liberman, Falls Church, Virginia, February 9, 2011,
letter......................................................... 452
Phillips, Carter G., Managing Partner, Sidley Austin LLP,
Washington, DC, January 14, 2011, letter....................... 454
Seitz, Virginia A., Nominee to be Assistant Attorney General,
Office of Legal Counsel, U.S. Department of Justice, statement. 459
Sohn, Gigi B., President, Public Knowledge, Washington, DC, March
30, 2011, letter............................................... 461
Taranto, Richard G., Farr & Taranto and Carter G. Phillips,
Sidley Austin, LLP, Washington, DC, February 10, 2011, joint
letter......................................................... 462
Todd, Gordon D., Sidley Austin LLP, Washington, DC, February 7,
2011, letter................................................... 466
Verrilli, Donald B., Jr., Nominee to be Solicitor General of the
United States, statement....................................... 468
DONALD B. VERRILLI, JR., OF CONNECTICUT, NOMINEE TO BE SOLICITOR
GENERAL OF THE UNITED STATES; VIRGINIA A. SEITZ, OF VIRGINIA, NOMINEE
TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S.
DEPARTMENT OF JUSTICE; AND DENISE E. O'DONNELL, OF NEW YORK, NOMINEE TO
BE DIRECTOR, BUREAU OF JUSTICE ASSISTANCE, U.S. DEPARTMENT OF JUSTICE
----------
WEDNESDAY, MARCH 30, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:34 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Sheldon
Whitehouse, presiding.
Present: Senators Whitehouse, Leahy, Schumer, Klobuchar,
Franken, Coons, Blumenthal, Grassley, Sessions, Hatch, and Lee.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR
FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. The hearing will come to order. We will
this afternoon be considering three nominations to key posts in
the Department of Justice, and just before I make a few opening
remarks, I want to let everybody know what the order of
proceeding is going to be.
After my statement I will recognize the Ranking Member, the
distinguished Senator from Utah, Mr. Hatch, Orrin Hatch, for
his opening remarks, and then we will go to the Senators who
have introductions to make of the nominees. The first will be
Senator Schumer, who will introduce Denise O'Donnell, the
nominee to be the Director of BJA. Then we will go to Senator
Carper and Senator Coons of Delaware, who will introduce
Virginia Seitz, who is the nominee to be the Assistant Attorney
General for OLC. And then Senator Blumenthal will have the
opportunity to introduce Don Verrilli, who is the nominee to be
Solicitor General. Then they will come forward, and we will
proceed with the hearing.
We in Congress and the American people have tasked our
Department of Justice with very weighty responsibilities:
protecting the Nation against national security threats,
preventing and punishing crime, and ensuring the fair
administration of justice. The Department must defend both our
constitutional rights and our safety. It must balance its
substantial authority with strict adherence to the rule of law.
The Senate is given a key role in ensuring that the
Department meets its great responsibilities. We must provide
the Department of Justice with the tools and resources it needs
to fulfill its vital mission, and we must make sure that the
Attorney General of the United States has the core group of
leaders in place to enable him or her to perform the
Department's responsibilities effectively.
Unfortunately, the Senate recently has lagged in the latter
regard. The Deputy Attorney General is a key operational leader
within the Department of Justice, but the current nominee has
been denied a vote for almost 1 year. I do understand that
lifetime judicial appointments have given rise to political
disputes. But I hope that the operational needs of the Justice
Department are not subjected to obstruction and delay. I
certainly hope we will keep that concern in mind as we consider
the three nominees before us today.
The first, Donald B. Verrilli, Jr., has been nominated by
the President to be Solicitor General of the United States. As
we all know, the Solicitor General has the privilege to
represent the United States in the Supreme Court. For that
reason, a Solicitor General must be a lawyer of the highest
intellect and character. Mr. Verrilli clearly meets this bar.
He is among our Nation's most respected and experienced
appellate advocates, having argued 12 cases at the Supreme
Court and participated as counsel in 22 more. Mr. Verrilli
currently serves as Deputy Counsel to the President and
previously served as Associate Deputy Attorney General in the
Department of Justice. He spent over 20 years in private
practice, and he clerked on the Supreme Court early in his
legal career. His remarkable record prepares him well to serve
as our Nation's next great Solicitor General.
The Office of Legal Counsel, another of the Department's
most important institutions, provides authoritative legal
advice to the President and to executive agencies. As my
colleagues know, I believe very strongly that the office
betrayed its historic high standards during the previous
administration. We need not relitigate those failings today,
nor need we retread the ground of the nomination of Dawn
Johnsen, which I believe was unfairly blocked. But I do hope
that we will all keep in mind the high standards that the
Office of Legal Counsel historically has achieved and the
urgent need to adhere to those standards going forward.
I have every expectation that Virginia Seitz, the
President's nominee to lead the OLC, will honor those
standards. She is a brilliant lawyer. In over 20 years of
practice, she has worked on more than 100 Supreme Court briefs
and hundreds of filings in lower courts, representing a wide
range of clients. A Rhodes Scholar, she too clerked on the
Supreme Court.
Our final nominee, Denise E. O'Donnell, has been nominated
to be the Director of the Bureau of Justice Assistance. The BJA
supports law enforcement initiatives that strengthen our
Nation's criminal justice system and coordinates important
departmental grant programs, including the Bulletproof Vest
Partnership Program, drug courts, the Byrne/JAG program,
Federal assistance to State prescription drug monitoring
programs, and the Prisoner Re-entry Initiative. Ms. O'Donnell
comes before the Committee with a remarkable record of service
in law enforcement leadership in New York State, most recently
as Deputy Secretary for Public Safety. And as I mentioned to
her earlier, she enjoys the strong support of Manhattan
District Attorney Vance.
I am glad to welcome such a qualified group of nominees to
the Committee, and I look forward to their testimony, but first
to the remarks of our distinguished Ranking Member, Senator
Hatch.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I am glad to
assist the distinguished Ranking Member, Senator Grassley, and,
of course, you, Mr. Chairman, in filling in today.
I want to welcome the three nominees before us each of whom
is nominated to head a key component of the Department of
Justice. The Bureau of Justice Assistance, for example,
provides a bridge between the State and Federal Governments in
helping law enforcement. Ms. O'Donnell, I note that you
received your undergraduate degree from Canisius College in
Buffalo. One year ago yesterday, I was privileged to deliver
the Raichle Lecture on Law in American Society at Canisius,
which has a strong and innovative pre-law center. Welcome to
the Committee.
Ms. Virginia Seitz has been nominated to head the Office of
Legal Counsel. She has the extensive private practice
experience that the previous nominee lacked and, frankly, does
not appear to have the extreme ideological baggage that many
felt the previous nominee carried. She also has strong support
among prominent lawyers from across the political spectrum. In
fact, one of them is my former chief of staff who caught me on
the way in to make sure that you are treated very well. And I
intend to do that.
[Laughter.]
Senator Hatch. In spite of Senator Schumer, I intend to.
She also has strong support among prominent lawyers from
across the political spectrum. My hope is that this more
balanced background of legal experience and broad-based support
will make her a more suitable nominee to this position.
Mr. Donald Verrilli also has extensive courtroom experience
and comes highly recommended by many distinguished leaders in
the legal profession, both liberal and conservative. His
nomination might not have been controversial at all had the
Obama administration not recently abandoned its duty to defend
the constitutionality of the Defense of Marriage Act. Previous
Solicitor General nominees of both parties have affirmed the
duty of defending Congress' statutes if reasonable arguments
can be made. With very rare exceptions that do not apply to the
Defense of Marriage Act, if a reasonable argument can be made,
then that reasonable argument must be made. Once a law is
enacted, that is the Department of Justice's duty.
A statute like the Defense of Marriage Act does not
suddenly become unconstitutional simply because the President's
party does not like. The Department's duty is not limited to
making what it considers the best legal arguments or the safest
legal arguments or legal arguments that send messages to its
political base. The Department's duty is to make any reasonable
argument that can be made.
Reasonable arguments certainly can be made that the Defense
of Marriage Act is constitutional. How do I know this? Well,
because this very same Justice Department has already made them
in court and has even offered to make them again. In my view,
the administration has abandoned its duty to Congress in order
to do a political favor for a political constituency. As a
result, this will be an issue in the context of Mr. Verrilli's
nomination. However, I intend to treat Mr. Verrilli very
fairly, as I always try to do, and I have great respect for
him.
Mr. Chairman, I will not take any more time so we can hear
the nominees and ask various questions. Thank you.
Senator Whitehouse. Thank you, Senator Hatch.
I am going to depart briefly from the schedule that I
announced at the beginning because the distinguished Ranking
Member of the Committee, and not just today's co-chair, is
here. Senator Grassley is our Ranking Member and would like to
offer an opening statement, and I will very gladly accommodate
his wish.
Senator Grassley. I have a very long opening statement, so
I am just going to refer to part of it.
Senator Whitehouse. The entire statement will be admitted
into the record with unanimous consent.
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. The task of the Office of Solicitor
General is to supervise and conduct Government litigation in
the Supreme Court. Virtually all such litigation is channeled
through the Office of Solicitor General and is thereby
conducted by the office. The United States is involved in
approximately two-thirds of the cases before the Supreme Court,
so this is a very important position.
Mr. Verrilli is nominated to be Solicitor General of the
United States. He is not the President's Solicitor General nor
the Solicitor General for the Department of Justice. The
Solicitor General must be an independent voice within the
administration. That means courage and willingness to defend
all the laws and the Constitution of the United States
regardless of the politics of the moment. And this is
particularly important given the President's announcement that
he would not defend the Defense of Marriage Act.
Likewise, the Assistant Attorney General heading the Office
of Legal Counsel must also be an independent and non-political
voice. I will not describe the duties of the office, but I want
to highlight the delegation from the Attorney General that this
official provides authoritative advice to the President. The
Office of Legal Counsel drafts legal opinions for the Attorney
General and also provides its own written opinion and oral
advice in response to requests from the Counsel to the
President.
The office is also responsible for providing legal advice
to the executive branch on all constitutional questions and
reviewing pending legislation for constitutionality. In
performing these duties, the Assistant Attorney General heading
this office must do so without regard to political pressure.
I would note that this office has not had a Senate-
confirmed person since Jack Goldsmith, confirmed October 2003.
Upon his departure, the President nominated Mr. Bradbury in
June of 2005 to fill the vacancy, and there was a hearing soon
afterwards, reported out of Committee November 2005. Mr.
Bradbury waited more than 3 years for Senate approval, which
never came. President Obama's first nominee for this position
was Dawn Elizabeth Johnsen. Her nomination was controversial,
and was eventually withdrawn by the President.
The third office for which we are considering a nominee is
the Bureau of Justice Assistance, a component of the Office of
Justice Programs within the Department of Justice. I would like
to emphasize that the policy, programs and planning which this
office administers must be accomplished in a nonpartisan
fashion. This office supports law enforcement and our Nation's
criminal justice system. It is essential that this office
promote local control of law enforcement and is fairly and
officially administering grant programs.
Two of the nominees--Ms. Seitz and Ms. O'Donnell--graduated
from the same law school. Ms. Seitz and Mr. Verrilli each
clerked on the same Court. Both clerked for Justice Brennan. I
commend each of the nominees for their prior public service,
and I will put the rest of my statement in the record.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Whitehouse. Thank you, Senator Grassley.
To introduce his home State nominee, Senator Schumer.
PRESENTATION OF DENISE O'DONNELL, NOMINEE TO BE DIRECTOR,
BUREAU OF JUSTICE ASSISTANCE, U.S. DEPARTMENT OF JUSTICE, BY
HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW
YORK
Senator Schumer. Thank you, Mr. Chairman, and I am really
honored to introduce one of the most dedicated and talented
public servants the State of New York has to offer: Denise
O'Donnell.
The job of managing the Bureau of Justice Assistance is
like taking a thousand points of light and making sure they all
stay lit. Police officers, judges, victims of crimes,
counselors, and a host of others who are involved in the
criminal justice system every day depend on the grants and the
expertise that comes from BJA to keep cops on the beat and
communities safe. This job is even more challenging today when
everyone has to figure out how to do more with less.
Now, I have known Denise and her wonderful family for a
long time--first, as the very accomplished and respected U.S.
Attorney for western New York where we teamed up to launch
Project Exile, a very successful effort to address the scourge
of illegal crime guns; and then later in private practice where
we worked together--she was in private practice; I was not; I
never have been--on a number of issues related to New York's
school boards. She went on to compete for public office and
then served, to universal acclaim, as a New York State Criminal
Justice Commissioner. So she has plenty of experience, and she
is a nonpartisan, on-the-merits person, the kind of person
Senator Grassley mentioned. I am sure that when you look at
Denise O'Donnell's history, you will see that she confirms
that.
Denise is deeply committed to public service and the
impartial, enlightened administration of justice. In short,
there could be no one better suited to this job than Denise
O'Donnell. She served as a lawyer, prosecutor, executive-level
manager, policymaker, and professional social worker. She has
dedicated her career to improving the judicial system in our
State, and after she is confirmed, she will do the same thing
for the country.
She is a native of Buffalo. She is the oldest of six
children, a graduate of Mount St. Joseph Academy High School.
She was a member of the first class that graduated women in the
formerly all-male Jesuit school, Canisius College, of which we
are all very proud in the western New York area.
She went on to earn a master's degree in social work and a
J.D. summa cum laude from SUNY at Buffalo. After joining the
U.S. Attorney's Office in the Western District, she rose to
become the first Assistant U.S. Attorney and was appointed to
be the U.S. Attorney for that office, the first woman for that
position. During that time she served as the Vice Chair of the
Attorney General's Advisory Committee. Among other significant
cases, she helped bring Timothy McVeigh to justice.
After she left office, she worked in one of the State's
oldest law firms, Hodgson Russ. Before returning to public
service as the Commissioner of the New York State Division of
Criminal Justice, where she oversaw a $64 million operating
budget, $86 million in local assistance, and $67 million in
Federal criminal justice assistance, she ran programs too
numerous to list, but they included the State's first DNA data
bank, the sex offender registry, and State and local re-entry
task forces. She has a long and accomplished resume, so I will
ask unanimous consent that my entire statement be read in the
record, but just one more mention. She held the post of Deputy
Secretary of Public Safety, managed 12 public safety agencies,
a budget of $4.7 billion, oversaw a portfolio of 11 homeland
security and criminal justice agencies, including the Division
of Criminal Justice Services, Office of Homeland Security, and
Division of the State Police and Department of Corrections.
Forty thousand employees, about 19 percent of the State's
workforce was under Denise's jurisdiction. She now serves on
the New York State Justice Task Force to Prevent Wrongful
Convictions in the Criminal Justice Council of New York.
Mr. Chairman and my colleagues, I know Denise well. She is
just a superlative public servant, a superlative human being,
and I think that she will meet the satisfaction of everyone on
this Committee because she is, again, an on-the-merits public
servant, and I ask unanimous consent that the rest of my
statement be read into the record.
Senator Whitehouse. Without objection, the rest of your
statement will be in the record.
[The prepared statement of Senator Schumer appears as a
submission for the record.]
Senator Whitehouse. Also without objection, a statement on
the nomination of Denise O'Donnell by Senator Kirsten
Gillibrand will be in the record. She could not be here, but
her statement is both warm and enthusiastic in support of this
candidate.
[The prepared statement of Senator Gillibrand appears as a
submission for the record.]
Senator Whitehouse. To introduce our next nominee, we have
Senator Carper and Senator Coons of Delaware. Senator Carper,
would you proceed?
PRESENTATION OF VIRGINIA SEITZ, OF DELAWARE, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S.
DEPARTMENT OF JUSTICE, BY HON. THOMAS R. CARPER, A U.S. SENATOR
FROM THE STATE OF DELAWARE
Senator Carper. Thanks so much, Mr. Chairman, Senators
Hatch and Grassley and our colleagues. Thank you for this
opportunity, especially to my colleague Senator Coons.
To the folks in the audience, it is not uncommon for people
from the same home State of a nominee to be here to introduce
him, and we are happy to do that--and in some cases, very happy
to do it. For me, given the nominee that the President has
submitted for this position of Assistant Attorney General for
the Office of Legal Counsel, for me it is a privilege, just a
great privilege, and I am humbled to be here to introduce
Virginia Seitz. The President has made not just a wise choice
in nominating Virginia Seitz for this position, but I think he
had made an extraordinary choice, and I am delighted to be here
to say so.
In case anybody is wondering who Virginia Seitz is, she is
right here over my right shoulder, and she is sitting next to a
couple of young guys. One of these guys is--both are named Roy.
One of them is her husband, and I think the younger one is her
son, who is a 10th grader, I think, at the Field School, and
Roy is her husband. I just want to say thanks to both of the
Roys for your willingness to share your mom and your wife with
the people of our country.
I think we are fortunate as a Nation that someone with
Virginia's outstanding credentials has stepped forward to do
this important work. Her education, her background, and her
experience are superbly suited for this position. I like to kid
her. I said when she could not get into the University of
Delaware as an undergraduate, she did manage to get into Duke
and graduated only summa cum laude with a Bachelor of Arts
degree. After that she went off to England where she studied at
Oxford and was awarded a Rhodes scholarship there, and later on
her law degree from the University of Buffalo. There is a
little Buffalo thing going on here if you listened to Senator
Schumer's introduction. But Virginia Seitz graduated first in
her law school class at the University of Buffalo.
She went on from there to clerk for one of the judges here
on the D.C. Circuit Court of Appeals, a fellow by the name of
Harry Edwards, and then later, as I think has been mentioned,
as a clerk for U.S. Supreme Court Justice William Brennan.
Currently she is a partner at the law firm of Sidley Austin
right here in Washington, D.C. She is one of the Nation's
leading appellate litigators. With over 20 years of litigation
experience, Virginia Seitz has hundreds of briefs and petitions
for Federal courts, and someone else mentioned, I think, more
than 100 briefs in the Supreme Court alone.
Aside from her professional experience, Virginia Seitz is a
person of extraordinary integrity and character. What do they
say about integrity? If you have it, nothing else matters. If
you do not have it, nothing else matters. And she is a person
of extraordinary integrity.
She is joined today, as I said earlier, by several members
of her family, including her husband Roy, her son Roy, and one
of her three brothers is here. You have two other brothers,
right? Yes. And one of her three brothers is here, and his name
is C.J. Seitz. He is sitting immediately behind Virginia. He is
one of the outstanding attorneys in the State of Delaware. He
is someone we are just extraordinarily proud of as well.
But Virginia is proud of her family's deep roots in our
State. Her father, C.J. Seitz, attended the University of
Delaware and then obtained his law degree from the University
of Virginia. C.J. Seitz served as vice chancellor of our State,
he served as chancellor for our State, the Court of Chancery.
He served also for about 20 years on the Delaware bench and
then joined the Third Circuit Court of Appeals. He was very
much involved as a chancellor in some of the civil rights
legislation--litigation, rather, of the 1950's.
As Virginia has said of her dad, he was a great man, and I
know he is very proud of his daughter today, and his son--sons,
actually. I too am proud to have the privilege of introducing
someone from my State, from our State, who has done and will
continue to do, I believe, just extraordinary service for our
Nation. With her legal background and acumen, her tireless work
ethic, and her experience as a Federal litigator, Virginia
Seitz is more than qualified to serve as Assistant Attorney
General for the Office of Legal Counsel.
I just want to say I was privileged to serve as Governor
for a while and got to nominate a lot of people to serve as
judges, and she has all the qualities of anybody I ever looked
for in that. The other thing I especially love about her, and,
frankly, her family, from her dad and mom, C.J., her brother,
these are people who are committed to figuring out the right
thing and to doing it. These are folks who believe in the
Golden Rule, treat other people the way they want to be
treated. These are folks who focus on doing things well. As I
like to say, if it is not perfect, make it better. They just
focus on excellence. And the last thing is just they do not
give up. They are hard-working family, really a great work
ethic, and she is someone who I think will make us all proud. I
am happy to commend her to you for your consideration, and
thank you for this opportunity.
Senator Whitehouse. Thank you, Senator Carper.
Now, Senator Coons.
PRESENTATION OF VIRGINIA SEITZ, OF DELAWARE, NOMINEE TO BE
ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S.
DEPARTMENT OF JUSTICE, BY HON. CHRISTOPHER A. COONS, A U.S.
SENATOR FROM THE STATE OF DELAWARE
Senator Coons. Thank you, Senator Whitehouse, and I am
pleased today to join the senior Senator from Delaware, Tom
Carper, in introducing Virginia Seitz to the Committee and
urging her consideration. Ms. Seitz is nominated, as you have
heard, to be the Assistant Attorney General for the Office of
Legal Counsel, and as head of OLC, she will be the top
administration lawyer tasked with the mission of providing the
President and executive agencies with legal advice that is
thorough, accurate, insightful, and free of political
expediency. And for this demanding job, I am proud that
President Obama has selected both such an exemplary candidate
and a Delawarean.
Ms. Seitz was born and raised in Wilmington, Delaware, and
there she and her three brothers attended the same high school,
Tower Hill, as I did. I was a contemporary of one of her
brothers, Steven, and I am proud to call another of her
brothers, C.J., who joins us here today and is an outstanding
member of the Delaware bar, my personal friend.
As you heard from Senator Carper, Ms. Seitz hails from a
very distinguished Delaware family. I had the privilege of
meeting Justice/Judge/Chancellor Seitz who served for 20 years
in Delaware's Court of Chancery when he was on senior status in
the Third Circuit, and he helped build the unparalleled
national reputation of our Court of Chancery. But more than
anything, he showed wisdom, judgment, and fairness in the
landmark case of Parker v. University of Delaware. Judge Seitz,
although well known in Delaware, I think is not nationally
heralded as much as he should be for being the first to order
desegregation, to overturn legal segregation in our State.
A later case, Belton v. Gebhart, was the one part case of
Brown v. Board that was affirmed by the Supreme Court, that
landmark case that once and for all ended legal segregation in
the United States.
From her childhood in Delaware, Ms. Seitz, who I think
learned a great deal about principles and legal reasoning from
her father, went on, as you heard, to attend Duke, Oxford, and
Buffalo Law School, has spent time both in prestigious
clerkships here with Judge Edwards and Justice Brennan, but in
my view, more importantly than anything else, has a private
practice career that spans 20 years. As an appellate attorney,
she has become an expert in labor and employment law, a field
where she has published many articles, spoken before many
groups, including the Federalist Society.
She is a distinguished appellate advocate and has worked
on, as you heard, more than 100 Supreme Court briefs and for
the several years has taught a course in practical Supreme
Court advocacy at Northwestern, which allows students to learn
from attorneys on cases they are preparing to argue before the
Supreme Court.
Ms. Seitz, with whom I had a chance to visit before this
hearing, is universally respected as an outstanding attorney.
She is a lawyer's lawyer. She has argued on both sides of civil
rights cases. She has, in my view, no ideological agenda, and
she has support from both sides of the aisle, including
gentlemen such as Ted Olson, Jack Goldsmith, and Steven
Bradbury, all of whom are known to members of this Committee
and who served as the head of OLC under previous Republican
Presidents.
In 2003, Ms. Seitz worked on a case that allowed her to
honor the outstanding legacy of her father's early
desegregation decisions. She appeared as counsel in the case of
Grutter v. Bollinger and successfully defended the University
of Michigan Law School's admission system, which sought to
achieve diversity within the student population along a very
broad range of factors, including racial diversity among them.
Although she lives in Washington today, Ms. Seitz remains a
Delawarean at heart, by birth as well as by choice, and last
year, just to reaffirm that, filed a petition for a writ of
certiorari with the Supreme Court on behalf of our State in a
dispute with some professional sports league over some State
sports lottery that really probably only interested
Delawareans.
Let me close with this, if I might. If confirmed, Ms. Seitz
will bring, in my view, greatly needed stability in leadership
to OLC, which has, unfortunately, been beset by controversy and
has not had a Senate-confirmed department head since 2004. I am
confident that Ms. Seitz will bring to this office that perfect
balance of intelligence, thoughtfulness, and an absolute lack
of partisanship that will serve the Office of Legal Counsel
well and will serve our Nation as well.
I am honored to join our senior Senator in urging her
consideration by the Committee. Thank you.
Senator Whitehouse. Thank you, Senator Coons.
And for our final introduction of his home State nominee,
the Senator from Connecticut, Senator Blumenthal.
PRESENTATION OF DONALD B. VERRILLI, JR., NOMINEE TO BE
SOLICITOR GENERAL OF THE UNITED STATES, BY HON. RICHARD
BLUMENTHAL, A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Blumenthal. Thank you, Mr. Chairman. I am very
privileged and honored to introduce to this panel Donald B.
Verrilli, Jr., who is the President of the United States'
nominee to be Solicitor General of the United States, one of
the most important positions in the system of justice and also
in the U.S. Government, and he is here today with Gale Laster,
who is his wife, and they have a 19-year-old daughter. I am not
sure whether she is here today--she is not here. But I am sure
she and Ms. Laster are very proud of Mr. Verrilli's many
accomplishments, which more than fully qualify him to be in
this position.
He happens to be a Connecticut native--well, almost. He was
born in New Rochelle, New York, right across the border, and
then grew up in Wilton, Connecticut, where his mother was the
first selectman of Wilton, I believe, from 1979 to 1985, by
happenstance a Republican first selectman and, I know from my
own experience, a very able first selectman, the chief local
official of that town.
Mr. Verrilli graduated from Wilton High School in 1975. He
went on to attend Yale University, graduated in 1979 with a
B.A. in history, and he then attended Columbia Law School,
where he served as editor-in-chief of the Columbia Law Review.
He served as a law clerk to Judge Skelly Wright of the United
States Court of Appeals for the D.C. Circuit and then to
Justice William Brennan of the United States Supreme Court.
Mr. Verrilli has spent much of his career in private
practice with over 20 years of litigation experience at the
Washington, D.C. office of Jenner & Block, where he has focused
on telecommunications, intellectual property law, First
Amendment, copyright, a wide variety of subject matter, a lot
of it at the highest levels of appellate practice with many
briefs before the United States Supreme Court as well as the
appellate courts and many personal arguments there. But he has
also done a wide variety of pro bono litigation, representing,
for example, Teach for America and the judges of the superior
court of the District of Columbia.
It is very important to understand what the Solicitor
General does. He serves as the President's principal advocate
in the United States Supreme Court, indeed, the United States'
principal advocate, and Mr. Verrilli is superbly qualified for
that role. He not only has chaired or co-chaired Jenner &
Block's Supreme Court practice group from 2000 until his
departure from the firm in 2009, but he has participated in
more than 100 cases before the Supreme Court, including
arguments in 12 such cases. He has participated in about 90
cases before the United States Court of Appeals and the State
supreme courts, arguing himself over 30 of those appeals. So he
is an expert appellate litigator who has attained really the
height of professional excellence throughout his impressive
career.
He has also served in the U.S. Government. He left his
private practice in 2009 to join the Department of Justice as
an Associate Deputy Attorney General where he served with
distinction. He focused on domestic and national security
policy issues, and he then moved to the White House, where he
currently serves as Deputy Counsel to the President. So I think
we all join in respecting and thanking him for his service to
the country so far, as well as his willingness to undertake
this new responsibility.
Mr. Verrilli is not a judicial nominee. He will not be
fulfilling a judicial role as an independent decisionmaker
weighing both sides and then reading the law. He will be an
advocate. His role as Solicitor General is to be an advocate
for the President, but also he is an official charged with
responsibility as an officer of the United States Supreme Court
to advise that Court as well. And having argued side by side
with the Solicitor General and having watched the United States
Solicitor General in many cases advise the Court, he has a
place of distinction unmatched by any private advocate before
that Court. So someone of this distinction and background and
expertise is an important resource to the United States Supreme
Court.
I would hope that his distinctions and his qualifications
will not be combined with a fight over political disagreements
or even with disagreements with him on particular issues. I
have to confess, having gone through in some detail his record
of arguments, I might disagree with him on some of the
positions that he has taken as an attorney, as an advocate,
before the United States Supreme Court. But the reason that he
is endorsed by so many members of the Supreme Court bar is that
he is superbly qualified and he has conducted himself with
distinction throughout his career.
As I am sure my colleagues know, he has been endorsed by
many of the recent attorneys who have served in the position of
Solicitor General in both Republican and Democratic
administrations, including Charles Freed, Kenneth Starr, Drew
Days, Walter Dellinger, Seth Waxman, Ted Olson, Paul Clement,
Gregory Garre. And I think those endorsements really confirm
the view that he is qualified for this position, and I
recommend him very heartily to my colleagues.
Thank you very much, Mr. Chairman.
Senator Whitehouse. Thank you very much, Senator
Blumenthal.
It should probably be a matter of record before this
Committee in this nomination that the opinions of Senator
Blumenthal regarding appellate advocacy are not without a very
significant foundation. If I am not mistaken, Senator
Blumenthal has argued three or four times himself before the
United States Supreme Court as Attorney General of Connecticut,
in addition to presumably innumerable appearances before the
State supreme court and the circuit court of appeals. So he
knows whereof he speaks when he talks of talented appellate
advocacy.
Senator Blumenthal. Thank you very much, Mr. Chairman. I
hope those very kind words will add some weight to my
recommendation, but I think this nominee really stands on his
own.
Senator Whitehouse. As we conclude the introductions, I
want to add into the record some of the letters of support that
we have received. We have a letter of support from the
nomination of Donald Verrilli to be Solicitor General from
eight former Solicitors General from both Republican and
Democratic administrations, including Charles Freed, Kenneth
Starr, Ted Olson, Paul Clement, and Gregory Garre, who explain
that they are all familiar with his work, his demeanor, and his
well-deserved reputation as a leading member of the Supreme
Court bar, and conclude that Mr. Verrilli is ``ideally suited
to carry out the crucial tasks assigned to the Solicitor
General and to maintain the traditions of the Office of the
Solicitor General.'' And I will enter that letter into the
record, without objection.
[The letter appears as a submission for the record.]
Senator Whitehouse. We also have another letter from over
50 Supreme Court practitioners, including Miguel Estrada, Peter
Keisler, and Maureen Mahoney, who all the signatories of that
letter describe themselves as lawyers who are deeply familiar
both with the work of the Solicitor General and with Don's own
work and character. And they concluded that, I quote, ``Don is
ideally suited to carry out the crucial tasks assigned to the
Solicitor General, chiefly the representation of the United
States in the Supreme Court, and to maintain the traditions of
the office that the Solicitor General leaves.'' They ``urge the
Senate to confirm him as Solicitor General,'' and I ask that
their letter also be entered into the record, without
objection.
[The letter appears as a submission for the record.]
Senator Whitehouse. And, finally, the general counsels of,
I think, 29 different major American corporations from Booz
Allen and GE to Bechtel and Viacom, to Exelon and Fidelity,
Ford Motor Company, Northrop Grumman, Sony, Intel, Verizon,
Microsoft, Google, Warner Brothers--a wide variety--have also
written a letter of support that, without objection, I would
like to add to the record.
[The letter appears as a submission for the record.]
Senator Whitehouse. Then we also have a number of letters
that I would like to add to the record on behalf of Virginia
Seitz: first, a letter of support from Peter Keisler, who is
the former Assistant Attorney General for the Civil Rights
Division and the former Acting Attorney General, therefore
somebody knowledgeable about the Department and OLC, under
President George W. Bush. In his letter, Mr. Keisler writes
that, ``I believe the President has made an inspired choice.''
He describes Ms. Seitz as having an unusually sophisticated
understanding of the law and legal plannings and a way of
relating particular doctrines and rules to the law's underlying
methods and purposes that reflects not only her extensive
knowledge but also, and more fundamentally, a deep appreciation
and respect for our distinctive legal tradition. And, without
objection, I will add that to the record.
[The letters appears as a submission for the record.]
Senator Whitehouse. Maureen Mahoney is a former Deputy
Solicitor General and a well-regarded appellate lawyer. She
writes of Ms. Seitz: ``Despite our political differences, I am
an ardent admirer of Virginia Seitz and strongly support her
nomination.'' She notes, ``Virginia is not blinded by ideology.
She knows how to be assertive without being aggressive, and she
can bridge differences with insight and diplomacy. She also
belongs to that rare breed of lawyers who are both brilliant
and exceedingly modest.''
We can probably stipulate that that is a rare breed.
[Laughter.]
Senator Hatch. So stipulated.
Senator Whitehouse. And there are a considerable number of
other letters of support that I will ask be added to the record
of these proceedings, without objection.
[The letters appears as a submission for the record.]
Senator Whitehouse. And that being accomplished, if I could
ask the nominees to step forward and be sworn, I would
appreciate it.
Please raise your right hand.
Do you affirm that the testimony you will give before this
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Mr. Verrilli. I do.
Ms. Seitz. I do.
Ms. O'Donnell. I do.
Senator Whitehouse. Thank you. Welcome and please be
seated.
Why don't we just go right across the panel and begin with
Mr. Verrilli. If you have a statement of any kind that you
would like to make, now is your chance to make it, and we find
that many of our nominees also take this opportunity to
introduce their family and friends who are present and commit
their presence to posterity through the good auspices of C-
SPAN.
[Laughter.]
Senator Whitehouse. So if you would like to do that, we
would be very pleased for you to take that opportunity.
STATEMENT OF DONALD B. VERRILLI, JR., NOMINEE TO BE SOLICITOR
GENERAL OF THE UNITED STATES
Mr. Verrilli. Thank you, Senator Whitehouse. I would like
to begin, if I might, by introducing my wife, Gail Laster, who
is, in addition to being a wonderful mother for our 19-year-old
daughter, Jordan--who is starting her spring term this week as
a freshman at Dartmouth, and that is why she is not here--she
is a distinguished lawyer and public servant in her own right,
having served as counsel on this Committee, having served as
general counsel at the Department of Housing and Urban
Development from 1997 to 2001, and currently as chief housing
counsel for Ranking Member Frank on the House Financial
Services Committee.
And, in addition, I would like to introduce my brother-in-
law, Joseph Wayland, who is here today with his son,
Christopher. Joe is currently in public service as the Deputy
Assistant Attorney General for Antitrust in the Department of
Justice, having left a long career in private practice to take
up that obligation.
I have an opening statement which, with your permission I
would submit for the record.
Senator Whitehouse. Without objection.
Mr. Verrilli. I would like, if I could, to just say a few
words by way of introduction.
Senator Whitehouse. Please.
Mr. Verrilli. I feel sitting here today a sense of profound
gratitude--gratitude to my wife, Gail, for her love and
position, gratitude to my parents, who are not here today but I
think are huddled around a laptop watching the webcast of this
proceeding, and so I do want to take this occasion to thank
them for teaching me through the example of their own lives the
fundamental importance of the values of dedication and
integrity and decency and kindness, and most importantly, the
invaluable lesson that so much more can be accomplished by
bringing us together than through division.
Of course, I also want to thank the President and am
profoundly grateful to the President for the confidence he has
shown in me with this nomination. I want to thank the Attorney
General for his strong support, and I want to thank this
Committee for the hearing today and taking the time to consider
my nomination.
I understand the weighty responsibilities and traditions of
the Solicitor General's office, and if I am fortunate enough to
be confirmed, I will do everything in my power to live up to
the high standards of professionalism, independence, and
integrity that have been set by Rex Lee and Seth Waxman and Ted
Olson and the other Solicitors General who have served with
such distinction during my time as a lawyer, as well as their
illustrious predecessors.
I fully understand that our Nation's commitment to the rule
of law requires that the Solicitor General uphold those high
standards, and I am humbled at the opportunity to take on that
challenge.
Thank you.
[The biographical information of Mr. Verrilli follows.]
Senator Whitehouse. Thank you very much, Mr. Verrilli.
Ms. Seitz, you have the opportunity as Mr. Verrilli to
introduce family and make a statement. Please proceed.
STATEMENT OF VIRGINIA A. SEITZ, NOMINEE TO BE ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF
JUSTICE
Ms. Seitz. Thank you, and I would like to thank Senators
Carper----
Senator Whitehouse. Is your microphone on?
Ms. Seitz. I would like to thank Senators Carper and Coons
also for their kind introductions. I am grateful to the
President for the honor of the nomination and to this Committee
for its consideration.
I would like to thank my family: my husband, Roy, who is a
25-year veteran of the Department of Justice. We met while he
was clerking for Justice Scalia and I was clerking for Justice
Brennan. He is the best imaginable husband and father. My son,
Roy, who is a sophomore at Field School. He is representing his
sister, who is a sophomore at the University of Chicago. And my
brother, C.J., who is representing my other brothers, Mark and
Steven. And my niece, Meredith, who is representing too many
nieces and nephews to count. And my absent parents, whom I wish
very much could be here today.
As has been mentioned, my father was the judge who ordered
the immediate desegregation of public schools in Delaware. At
the time his decisions were extraordinary and courageous. He
believed, though, that the law required that result, and he was
very passionate about the rule of law.
If I am confirmed, I will do my best to follow in his
footsteps, and I can make no deeper commitment.
Thank you to the Committee.
[The biographical information of Ms. Seitz follows.]
Senator Whitehouse. Thank you, Ms. Seitz.
Ms. O'Donnell, it is now up to you to make your
introductions and statement. We welcome you.
STATEMENT OF DENISE E. O'DONNELL, NOMINEE TO BE DIRECTOR,
BUREAU OF JUSTICE ASSISTANCE, U.S. DEPARTMENT OF JUSTICE
Ms. O'Donnell. Thank you, Senator Whitehouse. I also want
to thank Senator Schumer for the very kind and generous
introduction.
I am deeply grateful to share the experience today with my
family. With me is my husband, Hon. John O'Donnell, a justice
of the New York State Supreme Court; my son, Jack O'Donnell;
and watching from home are my daughter, Maura, an AUSA in the
Western District of New York; her husband, Kevin, and their
beautiful 4-month-old son, David O'Donnell Corbett. Also in
spirit are my parents, Ken and Shirley Malainbeiter. My father
was a World War II veteran, and both were very proud Americans
who taught all of us the importance of giving back and
instilled the values that I have embraced throughout my life
and professional career.
If I am confirmed, I am committed to do my very best and
demonstrate that I am worthy of the trust of President Obama,
of Attorney General Holder, and of each of you. And I thank you
for having me here today to testify, and I look forward to the
Committee's questions.
Thank you.
[The biographical information of Ms. O'Donnell follows.]
Senator Whitehouse. Thank you.
I have the privilege of leading off, and I will ask
questions briefly and then turn to the co-chair of this
hearing. But we are joined by the Committee Chairman and the
Ranking Member, and so I will take both the Committee Chairman
and the Ranking Member out of order afterwards, and then we
will go on to those who have been here.
Chairman Leahy. And, Mr. Chairman, if you would yield just
a moment, I think Ms. O'Donnell we should have had--with the
litany of the names, we should have had her on March 17th, is
when we should have had the hearing.
[Laughter.]
Ms. O'Donnell. Thank you, Senator. I was busy that day.
[Laughter.]
Senator Whitehouse. Mr. Verrilli, the Justice Department
recently indicated in a letter to Congress and in court filings
that it would no longer defend the constitutionality of the
Defense of Marriage Act. I personally believe that DOMA was
discriminatory and wrong, and I hope that it is quickly struck
down or repealed. I am pleased to have cosponsored the Respect
for Marriage Act with many other members of this Committee. But
that is a little bit beside the point today.
Mr. Verrilli, can you describe your involvement in the
administration's decision to no longer defend the
constitutionality of DOMA? And can you also share with us what
standard you would use, if confirmed as Solicitor General, for
deciding which statutes to decline to defend against
constitutional challenge?
Mr. Verrilli. Of course, Senator, but if I could start by
amending an oversight in my introduction, I would like to thank
Senator Blumenthal for that extraordinarily generous
introduction.
Having done that, we will move to your question. The short
answer to your question, Senator, is that I had no involvement
in any decision with respect to the defense of DOMA. I was
recused from that matter as a consequence of the ethics pledge
that I signed as an administration official upon coming into
the executive branch. That ethics pledge imposed a 2-year bar
on participation in any matter in which one's former employer
was involved. My former law firm, Jenner & Block, was involved
in at least one of the pieces of litigation challenging the
act. I was not personally involved in the litigation, but my
law firm was. And so as a consequence of the ethics pledge, I
did not participate in any way in the decision respecting DOMA.
With respect to the question of what standard I would apply
if I am confirmed to the position of Solicitor General, I want
to say first that I understand very well that the Solicitor
General has responsibilities to this co-equal branch of
Government, to the Congress, and that the core of that
responsibility is to defend statutes that this body enacts. And
if I am confirmed, I will apply the same standard that
Solicitors General have applied historically and the Department
of Justice applies. I will defend statutes when this body
enacts them and when they are challenged as unconstitutional in
court. And there are only two exceptions to that obligation.
They are very rare, and they are the same exceptions that all
prior Solicitors General have acknowledged.
First, if in the view of the executive branch the
legislation violates the separation of powers by making an
incursion into the President's constitutional domain, that is
one exception where there would not be a defense.
The second is if there is no reasonable argument that can
be advanced in defense of the statute.
Those are the two and only two exceptions, and they are
rare.
Senator Whitehouse. Thank you, Mr. Verrilli. I think since
I am going to be here until the end of hearing, I am going to
reserve any further questions I may have for anybody else on
the panel and turn to my distinguished co-chair, Senator Hatch,
and then to our Chairman, Chairman Leahy, and then to our
Ranking Member, Senator Grassley.
Senator Hatch. Well, I will defer to the Ranking Member,
Senator Grassley, for his questions, and then I will question,
if I could, after Senator Leahy.
Senator Whitehouse. We will do that. Grassley, Leahy, Hatch
will be the order.
Senator Grassley. Mr. Verrilli, a little bit along the
lines of where the distinguished Acting Chairman left off, I
would like to explore with you how you review the role of
Solicitor General. Many times you as Solicitor General may not
personally agree with a particular statute, yet you must
enforce and defend these laws, regardless of your personal
views, and I believe you must do so vigorously. I do not have
any doubt that you would do that because that is your duty. You
do not get to pick and choose which statutes to defend.
If confirmed, would you vigorously enforce and defend the
laws and the Constitution of the United States? And I believe
you quite obviously said you would.
Mr. Verrilli. Yes, I certainly will.
Senator Grassley. OK. The President opposes the Defense of
Marriage Act. Recently the Department of Justice announced that
it would no longer defend the Act. I understand that you were
recused and that that recusal ended a couple weeks ago from
internal discussions on this issue based on work performed by
your prior law firm. If you had been involved in the
discussions in advising the President, would you have told him
that the administration must defend the statute?
Mr. Verrilli. Senator, I think that having been recused, I
really did not play any role in thinking about the question of
how to apply the traditional standards of reasonable argument
and defense to this situation. I have read the letter that the
Attorney General sent to the Congress pursuant to 28 U.S.C.
Section 530(d). I have read the Attorney General's statement.
Beyond that, I really do not have any developed sense about the
legal analysis or issues.
But what I can say about it is that I worked at the Justice
Department for a year and worked with the Attorney General, and
I have worked now for a little more than a year at the White
House for the President. And based on that experience, I have a
great deal of confidence--certainty, really--that each of them
understood the gravity of this decision, each of them
understood the difficulty of the issue, and each of them
undertook to make a decision based on the law.
Beyond that, I do not really think I can say more.
Senator Grassley. If you are confirmed, you will be
Solicitor General of the United States of America. Your client
will no longer be the President. If the President believes a
statute should not be defended but you believe there is a basis
on which it is defended, would you vigorously defend it?
Mr. Verrilli. Senator, I would certainly--if I believed
that there was a basis for defending a statute, that would be
the judgment I would make, that it ought to be defended, and I
would--to the extent the President inquired, I would certainly
provide the President with that advice.
Senator Grassley. Does that include the Defense of Marriage
Act?
Mr. Verrilli. Well, Senator, the President has made a
decision about the Defense of Marriage Act, and the Attorney
General has made a decision about the Defense of Marriage Act.
Senator Grassley. Well, then I think you answered this
question just now, but let me ask it anyway. If the Attorney
General concluded that a statute should not be defended but you
disagreed, what would you do?
Mr. Verrilli. Well, I would give my best advice to the
Attorney General. Ultimately the Solicitor General is
exercising authority that is given by statute to the Attorney
General and delegated by regulation to the Solicitor General,
so it is the Attorney General's authority. But I would in all
instances give my best advice.
Senator Grassley. Section 2 of the Defense of Marriage Act
permits States to choose whether or not to recognize same-sex
marriages from other States. Do you believe that this is a
valid exercise of Congress' power? And would you defend Section
2 of the Act if it is challenged in the Supreme Court?
Mr. Verrilli. Senator, because I have been recused, I have
not given any specific consideration to that issue, but I can
pledge to you that I would apply the appropriate and
traditional standards for deciding on defense of a statute in
answering that question.
Senator Grassley. Well, I guess to clarify, then, would you
defend the Defense of Marriage Act as Solicitor General?
Mr. Verrilli. I think the best I can say to you, Senator,
is that I would in good faith apply the traditional Justice
Department standards to answering that question to the extent
it has not already been decided by the President and the
Attorney General.
Senator Grassley. You told the previous questioner, the
distinguished Acting Chairman, that there were only two
exceptions, and I do not see how the question I asked falls
into either one of those exceptions. But I will leave it go at
that.
Thank you very much, Mr. Chairman.
Senator Whitehouse. Thank you, Senator Grassley.
Chairman Leahy.
Chairman Leahy. Thank you. Thank you, Mr. Chairman.
Let me just follow up a little on that, on DOMA. I read
Attorney General Holder's detailed letter to the President, and
he said he made his decision based on the legal analyses of the
Justice Department, not his policy preferences. He determined
that the courts apply heightened scrutiny to DOMA, a standard
the Department is urging should apply because DOMA treats
people differently based on their sexual preference. The law
would not pass muster under the Equal Protection Clause of the
Fifth Amendment, and he said that because of that the
administration could not make a reasonable argument in the
court that it was constitutional.
Now, this is not really that different than any other
administration. I know that in past administrations, Republican
and Democratic, have done the same thing. One example brought
out was in 1990 President George H.W. Bush's Acting Solicitor
General did not defend an FCC policy, adopted at the urging of
Congress, aimed at increasing minority ownership of radio and
television stations, even though the FCC Chairman had asked the
Bush administration to defend it. In fact, he submitted a brief
to the Supreme Court arguing that the FCC policy violated the
Equal Protection component of the Fifth Amendment, an argument
they lost 5-4. That Solicitor General was John Roberts, who is
now the Chief Justice of the Supreme Court.
Do you have any problem, if you are Solicitor General, to
defend the constitutionality of duly enacted statutes if
reasonable constitutional arguments can be made?
Mr. Verrilli. That is the responsibility of the Solicitor
General, yes, Mr. Chairman.
Chairman Leahy. Thank you. I also wanted to commend you on
the significant work you have done to protect the Sixth
Amendment right to effective counsel. I worry that too often
that an individual's right to effective counsel depends upon
how much money they might have. And I have asked a number of
nominees about one particular precedent, Gideon v. Wainwright.
It moved me a great deal as a young law student. I had an
opportunity to sit at a lunch with Justice Hugo Black shortly
after he authored Gideon. He said he recognized, of course, the
Sixth Amendment's guarantee to counsel, a fundamental right,
and so on. That wonderful book, ``Gideon's Trumpet,'' I recall
reading that.
But doesn't Gideon stand for the principle that, to be
meaningful, such a fundamental right as a right to counsel
requires assurances that it can be exercised, not just that it
is there but it has to be exercised? And I am thinking
particularly in capital cases.
Mr. Verrilli. Yes, Senator, I think it does.
Chairman Leahy. OK, and it is hard to pass legislation to
assure that there is effective counsel.
Now, because of your work there, some question of whether
you can defend the Government's position in a capital
punishment case, where they are seeking capital punishment, how
do you feel about that?
Mr. Verrilli. I understand that, Senator, there is a
Federal death penalty law. It is enforced in appropriate cases.
And if I were confirmed as Solicitor General, I would certainly
and vigorously defend the application of the Federal death
penalty law.
Chairman Leahy. Thank you.
Ms. Seitz, good to have you here.
Ms. Seitz. Thank you.
Chairman Leahy. While I did not know your father, I have
great admiration for his courage. The role of the Justice
Department's Office of Legal Counsel is to provide impartial
and independent legal advice for the executive branch, and I
have watched that carefully. I came here during the Ford
administration. I have always watched OLC do that.
The last administration, though, bothered me because they
worked to advance extreme theories of Executive power. Last
week, the Department released portions of a November 2nd
opinion from John Yoo that said FISA only provides a safe
harbor for electronic surveillance and cannot restrict the
President's ability to engage in warrantless searches that
protect national security. That seems an extreme view that we
saw during the Yoo and Bybee era.
Will you commit to do a comprehensive review of all OLC
opinions currently in effect to make sure that you agree with
those that are currently in effect and withdraw some that you
think are either wrong or problematic?
Ms. Seitz. Senator, I understand that a number of OLC
opinions from that period have already been withdrawn or there
has been an indication that they should no longer be relied on
on the OLC FOIA reading room website. I understand also that a
process of review is underway.
Chairman Leahy. And you have no problem with that?
Ms. Seitz. I have reviewed the OLC policies and procedures
about when they reconsider decisions, how they go through
decisions, and I would certainly commit to complying with those
policies and procedures about review of OLC decisions in the
past, and I have no problem with that.
Chairman Leahy. Thank you.
Thank you, Mr. Chairman.
Senator Whitehouse. Thank you, Chairman Leahy.
Senator Hatch.
Senator Hatch. I welcome all three of you to the Committee
and wish you well.
Mr. Verrilli, is your duty as Solicitor General actually to
defend if a reasonable argument exists or to give advice on
that argument or that question?
Mr. Verrilli. I think the longstanding tradition of the
Department of Justice is to defend statutes so long as there is
a reasonable argument to be made in their defense.
Senator Hatch. Right. Now, in general, is it reasonable to
assume that if the Department of Justice has, in fact, defended
a statute that reasonable arguments exist to support that
statute?
Mr. Verrilli. I think in analyzing the question of whether
reasonable arguments exist, that would certainly be an
important consideration.
Senator Hatch. That certainly would because the Department
is already on record as saying it is reasonable.
Would you allow a difference in administration, a
Republican administration and a Democrat administration, to
decide that issue? Or would you decide it based upon the fact
that there was a reason to defend the statute of the United
States?
Mr. Verrilli. I think that Solicitors General and, if I am
fortunate enough to be confirmed for this position, I would
approach that as a question of law, which is how it should be
approached. It is a legal question, and the question is whether
there are reasonable arguments that can be made in defense of
the statute.
Senator Hatch. Well, let me just say this: You have
impressive qualifications and a lot of support, and as I
suggested in my opening statement, there are more concerns
about the office than about you personally. In fact, I have a
high respect for you. I need to know how you understand the
Solicitor General's duty to defend the constitutionality of
Federal statutes, and I want to approach that in a couple of
different ways, if I can.
In Ashcroft v. Free Speech Coalition, the Supreme Court
struck down a Federal statute banning virtual child
pornography. You signed a letter to this Committee opposing
legislation that would respond to that decision. You expressed
grave concerns about the bill and said that it would violate
the First Amendment. And as you may know, I introduced that
legislation in the 108th Congress, and it was cosponsored by
several members of this Committee, including the Chairman and
Ranking Member. Both my bill and the conference report passed
the Senate unanimously, and in 2008 the Supreme Court voted 7-2
to uphold it.
Now, I have two questions. First, do you believe that the
agreements in favor of my legislation's constitutionality were
reasonable? And, second, if you had been Solicitor General at
the time, would you have vigorously made such arguments despite
personally believing that my legislation was unconstitutional?
Mr. Verrilli. Yes, Senator, without reservation, and if I
could just say with respect to that letter, if I am remembering
correctly, expressed a revulsion with respect to child
pornography, which I deeply feel, and it also expressed support
for appropriate and vigorously of child pornography.
I think one thing the letter said was that the legislation
on which it was commenting had at least potentially a flaw that
was the same flaw that had led the previous legislation to be
held unconstitutional, and I was only making that narrow point.
But even having said that, I just want to make absolutely clear
that that is certainly a situation in which, had I been
Solicitor General, I would have vigorously defended the
statute.
Senator Hatch. Well, thank you. Now, let me ask about this
in a different way. Previous Solicitor General nominees have
strongly endorsed the duty to defend the constitutionality of
Federal statutes. When now Justice Elena Kagan was here in
February 2009, for example, she said that the only exceptions
to this duty, as you have stated, are when there is literally
no reasonable argument that can be made and when a statute
``infringes directly on the powers of the President.''
I think you have said that you agree with this description
of the Solicitor General's duty.
Mr. Verrilli. I think that now Justice Kagan stated the
standard, yes.
Senator Hatch. OK. Now, I am sure--you know Drew Days was
the first Solicitor General in the Clinton administration. He
appeared before the Committee in May 1998-1993, rather. I was
the Ranking Member of the Committee at that time and attended
the hearing. He said the following: ``My understanding is that
although the Attorney General and the President can direct that
there not be support for acts of Congress, only rare instances
would justify that and would have to relate to separation-of-
powers issues.'' Do you agree with that? I think you have
pretty well said you agree with that.
Mr. Verrilli. Well, I think that the--I think I agree with
what General Days said, that the President and the Attorney
General--at the end of the day, the Solicitor General works for
the Attorney General, who works for the President, and,
therefore, the Attorney General or the President can issue a
direction of that kind. I do think that the standards that the
Attorney General would apply would be the same traditional,
longstanding standards that the Department of Justice applies
generally. And so I think that the question really would be
whether the Attorney General or the President are satisfied
that those standards are met. There are going to be very rare
instances. They are very difficult cases. But I think that
would be the question they would have to answer.
Senator Hatch. Thank you. My time is up, but I do have some
further questions.
Senator Whitehouse. We can continue into a second round
once everybody has had their first round.
Next in order is Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman.
Congratulations to all of you.
Ms. Seitz, if you are confirmed, you are going to be taking
over as the head of an office that has gone without a Senate-
confirmed leader for 7 years since Jack Goldsmith left in 2004.
What would some of your first priorities be if you were
confirmed to serve in that position?
Ms. Seitz. Thank you, Senator. The Office of Legal Counsel
is primarily a reactive office--that is, the----
Senator Klobuchar. Really.
Ms. Seitz [continuing]. Problems come to it rather than it
setting an agenda for resolution of decisions. So I assume that
the problems that face the Department and agencies and the
Presidency would form the basis for the legal questions which
would then come to me, which would set my agenda for me.
Just as a person coming into that situation with an
absolutely stellar group of attorney advisers and first-class
political and non-political deputies, I think my first step
would be to learn from them, and then my second step would be
to do my best to give the candid, principled, and independent
advice that that office is called on to give.
But we do not really set an agenda. The country sets the
agenda for that office.
Senator Klobuchar. Thank you.
Ms. O'Donnell, the Director of the Bureau of Justice
Assistance is a very important job, and I know that the goal--I
know this as a former prosecutor. We worked with your office.
But the goal is to create safer communities. And along with
administering local grants and training local agents, two
components of your job description really stick out to me: the
first is the idea of encouraging innovation in programs; and,
second, creating accountability for projects.
As you know if you have been watching the news, we are in
some very vigorous debates about the budget and how we best use
the money that we have. Could you talk about how you would
focus on making the work of this Department as accountable as
possible to the public?
Ms. O'Donnell. Absolutely. Thank you, Senator. As you heard
from Senator Schumer, I did have the responsibility of serving
as director of an agency that was the criminal justice agency
that received BJA funds, so I have a track record and
experience for making sure that we are accountable for those
funds and consider it a priority to be a careful steward of
funds that are entrusted to any agency that I would lead, would
I be fortunate enough to be confirmed to head BJA.
I think it is important to be fair and be objective in
terms of the grant administration process and to ensure that we
build in accountability measures and track the performance of
the grants that we are funding.
I also think that the role and the course that BJA is
really headed on is to ensure that we promote evidence-based
practice so that we support programs that have been proven and
shown by the data to really work.
Senator Klobuchar. I think that is going to be very
important as we move forward. I think there has been more and
more of that in criminal justice, but there has to be even more
because sometimes people just keep going to one program because
it has been there a long time. I think it is very important to
look at them, so thank you.
Mr. Verrilli, I just had one last question here for you.
You have argued 12 cases before the Supreme Court, and I know
that the Judiciary Committee received a letter on your behalf
from almost 80 appellate advocates, folks from across the
political spectrum singing your praises. In part, the letter
reads, ``The successful functioning of the Solicitor General's
office requires an ability to see the effects of particular
arguments on the overall interests of the United States, both
across agencies and over the long term. Shaping arguments to
respect those interests and to protect the special credibility
the office has acquired over the decades of its existence while
maintaining clarity and force in presentations demands the
whole range of knowledge, intelligence, judgment, and other
capacities that Don has in abundance.''
That is pretty nice. That is not my question, though.
[Laughter.]
Senator Klobuchar. My question is: The part of the letter
that interests me, it says how important it is to protect the
special credibility the office has acquired over the decades of
its existence. How do you intend to do that?
Mr. Verrilli. I intend to do that by following in the
footsteps, if I am confirmed, of the great Solicitors General
we have had in my lifetime as a lawyer, and the way in which
they have distinguished themselves is by acting with integrity,
acting with independence, calling them as they see them,
essentially, and understanding that they have an obligation to
all three branches of Government, they have an obligation to
the rule of law. And I would, if I am confirmed, do my best to
live up to those standards.
Senator Klobuchar. Thank you very much.
Senator Whitehouse. Senator Lee.
Senator Lee. Thanks to all three of you for being here
today. It is an honor to be here with you.
Mr. Verrilli, I just had a few questions for you. Do you
believe that it is the duty of the Solicitor General to advance
the political agenda of the President?
Mr. Verrilli. No, Senator, I do not think--I think the duty
of the Solicitor General is to advance the long-term
institutional interests of the United States, and it is not a
partisan job.
Senator Lee. So it is possible that those two things can
conflict, the political agenda of the President on the one hand
and the legal obligation to the United States on the other?
Mr. Verrilli. Well, I think partisan considerations really
should play no role in the judgment that a Solicitor General
makes.
Senator Lee. And it should be based on your understanding
of the law and your ability to convey arguments to the Supreme
Court based on the law and based on the Constitution and so
forth. Is that----
Mr. Verrilli. Certainly.
Senator Lee. If I understand it correctly, Attorney General
Holder sent a letter to House Speaker Boehner explaining the
decision no longer to defend DOMA, and in that letter Attorney
General Holder explained as follows. He said, ``Previously, the
administration has defended Section 3 of DOMA in jurisdictions
where circuit courts have already held that classifications
based on sexual orientation are subject to rational basis
review, and it has advanced arguments to defend DOMA Section 3
under the binding standard that has applied in those cases.''
He acknowledged that the Department of Justice attorneys
had defended DOMA Section 3 on that basis, on the basis that
rational basis review would apply. Is that your understanding
as well?
Mr. Verrilli. I have read the letter. I think that is what
it says.
Senator Lee. OK. Then the letter goes on to explain why he
believes that that is not the appropriate standard, that
heightened scrutiny ought to apply rather than rational basis.
He goes on also to conclude that there is no reasonable
argument that can be made to defend DOMA Section 3 under the
rational basis standard or otherwise. So my question for you
is: If the Department of Justice has defended the law that it
later determines to have been so unconstitutional that no
reasonable argument can be made in defense of it, does that
mean that the Department of Justice attorneys who previously
defended that law acted unreasonably?
Mr. Verrilli. No, Senator, I do not think so. I mean, you
know, these are quite rare circumstances, but they do arise,
and they really have arisen in most administrations. There is
an example that when Paul Clement, who was a superb Solicitor
General, was here for his confirmation hearing, he described a
case involving a law that this body had enacted which had
prohibited bus advertisements favoring the legalization of
marijuana for transit systems that received Federal funds, and
that was a case that the Department of Justice had defended in
the trial courts. There was a constitutional challenge to it,
and the Department of Justice defended it in the trial courts,
did its best. And as he explained to this Committee that, when
he looked at it, he just made a judgment that applying the
traditional standards you just could not mount a reasonable
constitutional defense for it, and so he changed. And I do not
think that implies anything about the judgment of the lawyers
who had previously handled the case, and I think these things
are really tough, and people make the best decisions they can.
They apply the standards. They act in good faith. They take it
seriously. They wrestle with it, and they do their best. So I
do not think it implies anything one way or another about the
reasonableness of the prior judgment.
Senator Lee. Although here they are disagreeing not only as
to the ultimate outcome as to constitutionality, but as to the
standard that should apply, and they are arguing that no
reasonable argument could be made that rational basis scrutiny
would govern. That does seem to me to require a certain
conclusion as a condition precedent to this decision not to
defend it that those Department of Justice lawyers who
previously defended it acted unreasonably in their defense of
DOMA.
Mr. Verrilli. Well, you know, because I was recused, I
really--all I really know is what is in the letter. Having said
that, I still do not think that I would be--I do not think I
would reach that conclusion because these are tough decisions
and people act in the best of faith and they make judgments
that they think are reasonable.
Senator Lee. Sure. And they sometimes make policy
judgments, and it appears to me that this was a policy judgment
made by this administration that although previous
administrations had defended the law--the Clinton
administration, given that President Clinton signed it into
law, the Bush administration, and even the Obama administration
had defended it--for policy reasons it was no longer going to
defend it. But do you believe that a change in policy, a
political calculation-based policy decision should affect the
way the Solicitor General operates in deciding when, whether,
and under what circumstances to defend a law?
Mr. Verrilli. With respect to this decision, the DOMA
decision, because I was recused, as I said, all I can say about
it is based on having worked with the Attorney General and
having worked for this President. And I do have confidence,
Senator, that they wrestled with it, understood it was a rare
circumstance and a grave decision, and made the best judgment
they could on the law. And I think if I were confirmed as
Solicitor General, I can assure you that decisions I make will
be made on the law and not on partisan considerations.
Senator Whitehouse. Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Ms. O'Donnell, for the past two Congresses, I have worked
with Ranking Member Grassley and with Chairman Leahy to
introduce and pass legislation to eliminate our Nation's rape
kit backlog. As I am sure you know from your work in New York,
there are thousands of untested rape kits in crime labs and
police departments all around the country, and victims are
suffering because of it, and there are new victims because of
the backlog.
As part of the Government's economic recovery efforts, BJA
awarded 12 grants to enhance forensic and crime scene
investigations, three of which went to local governments in
Minnesota. The BJA is also promoting the National Institute of
Justice's new initiative on sexual assault kit evidence which
will identify solutions to the nationwide problem of untested
evidence.
If you are confirmed, what will you do to ensure that BJA
continues to coordinate and collaborate its work with other
bureaus to work toward the goal of testing every evidence kit
in this country?
Ms. O'Donnell. Well, thank you, Senator. I did have the
responsibility to oversee the DNA data bank in New York in my
prior position. I know how important DNA is to solving crime,
and particularly cases of sexual assault, as you point out. So
I would certainly make this an important priority at BJA, were
I fortunate enough to be confirmed.
I know also that other OJP components, particularly NIJ has
taken the lead in this area as well, and I think it is
important that the different components collaborate and work
together to try to support important initiatives like that.
Senator Franken. Ms. Seitz, your amicus brief in Grutter v.
Bollinger on behalf of former Pentagon officials received a lot
of attention in that case. Can you tell us about that brief and
about the position of those Pentagon officials?
Ms. Seitz. In that brief we sought to make a contribution
to the litigation in the Supreme Court of the question whether
the affirmative action programs in place at the University of
Michigan undergrad and in the law school were constitutional.
One of the questions that might be helpful was the extent to
which diversity was an important consideration in both
admission to the military academies and in the constitution of
the officer corps of the military branches of the U.S.
Government. And so we, on behalf of a very prominent group of
military officials, went to them and asked for their
perspective on this as well as doing research into the policies
at the various military academies and drafted a brief that was
essentially descriptive of their views that diversity in the
officer corps and diversity among those being trained for the
officer corps was critically important. And so on their behalf,
we simply presented that description of the interests of those
military officers in that case, and that was an important
consideration to the court in resolving the matter.
Senator Franken. So my impression is that the court agreed
with your arguments in the brief. Is that correct?
Ms. Seitz. There were actually two cases, and what the
court found was that the policy at undergraduate admissions was
not constitutional and the policy in the admissions process in
the law school was constitutional. And so there was sort of a
division of opinion with respect to the constitutionality.
Senator Franken. Thank you.
Mr. Verrilli, if you are confirmed for this position, you
will be responsible for coordinating the defense of the
Affordable Care Act in our Nation's courts. That is an
important job, and while I feel comfortable that the statute is
constitutional, it is also a tough job.
Tell me, why do you want to do this job?
[Laughter.]
Mr. Verrilli. Well, really so that I could get a chance to
testify here today in front of this Committee.
[Laughter.]
Senator Franken. That is a sufficient answer. Thank you.
[Laughter.]
Mr. Verrilli. It is because it would be an extraordinary
honor and privilege to represent the United States in front of
the Supreme Court. I cannot think of anything that a person who
loves this country and who loves being a lawyer could want to
have more than the opportunity to serve in this role.
Senator Franken. I think that is a better answer.
[Laughter.]
Senator Franken. Thank you, Mr. Chairman.
Senator Whitehouse. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman.
I would like to ask Ms. O'Donnell: This morning for about
2\1/2\ hours this Committee heard testimony from the Director
of the FBI, and one of the points he made was the importance of
resources. In fact, he said that the cuts that are contemplated
under one of the budgets that is before the Congress now would
prevent him from filling about 1,100 positions in the FBI,
which would stall and severely undermine efforts to enforce the
law. So resources matter. Cuts in the Federal budget have
consequences not only to the Department of Justice but also to
many of the State and local agencies with whom you will be
working if you are confirmed.
So I wonder if you could perhaps give us your views based
not only on your nomination for this position at the Department
of Justice but also as a line attorney in the Department of
Justice, as an Assistant United States Attorney, and as United
States Attorney in the Western District of New York as to the
importance of resources in enforcing the law.
Ms. O'Donnell. Thank you, Senator. Well, it is clear that
law enforcement cannot do it without the resources to get the
job done, and I think it is important that we provide the kind
of support that our law enforcement officers need.
On the State and local side, I would say that pretty much
everything innovative being done by law enforcement in most of
the States is done because of funding received from BJA, and in
particular the Byrne grant funding. It funds innovative
programs. It funds drug courts. It funds bulletproof vests.
Like we said, it funds important intelligence-sharing
capabilities. And those funds are really critical to all of our
State and local and tribal partners, so we need the resources
on the Federal side to support our Federal agencies, and our
State and local law enforcement officers who are on the front
lines fighting crime every day really require that we support
their efforts.
Senator Blumenthal. Thank you.
Mr. Verrilli, as you have heard, there has been a lot of
interest in when, if at all, you would decline to pursue a case
because you thought there was no reasonable argument that could
be made for the position of the United States, and you have
referred to it as ``rare'' that you would reach that
conclusion. And I assume by ``rare'' you do not just mean rare
in the sense that we as lawyers rarely argue before the United
States Supreme Court or we rarely take a trip around the world.
It would be almost a unique situation that would cause you to
reach that conclusion. Is that correct?
Mr. Verrilli. Yes, definitely, Senator. These are really
grave decisions, and they should be undertaken only with a
deep, deep sense of the gravity and a deep sense of the
responsibility and the strong presumption of constitutionality
that every enactment of this body has.
Senator Blumenthal. In fact, in seeking to uphold statutes,
lawyers begin, if they represent either a State or the United
States, with the argument that every statute that is passed by
this legislative body, which represents the people of the
United States, is entitled to a presumption of
constitutionality. Is that so?
Mr. Verrilli. That is absolutely right, Senator.
Senator Blumenthal. And that is the approach you would take
as Solicitor General of the United States?
Mr. Verrilli. Yes, that is what I believe.
Senator Blumenthal. Thank you.
Senator Whitehouse. It would now ordinarily be Senator
Sessions' turn, but he has graciously yielded to Senator Hatch,
so I will turn to Senator Hatch and then Senator Sessions.
Senator Hatch. Thank you. I have to get back to the office.
I want to tell you two women that I think you are both
very, very competent and good people. I had some questions for
you, but I am not going to ask them. I intend to support both
of you and wish you the very best in your positions. I just
want to finish with Mr. Verrilli for a minute.
Now, I acknowledge and realize that you were not in a
decisionmaking role with regard to the DOMA matter and that it
has been made and that this should not fall in your lap. But
with respect, 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 say otherwise, will you defend
the statutes or not or resign?
Mr. Verrilli. Senator, I would defend the statute unless
instructed by my superior not to do so.
Senator Hatch. Well, see, that is not a good answer. The
Solicitor General has the obligation of defending the statute
under those two conditions, and I added ``or resign'' not to
get you out of the Solicitor General's office but to give you a
reasonable out if you disagree with the President and/or the
Attorney General on something as monumental as many think this
issue is, or a similar issue. So I am just asking you, would
you allow the President of the United States or the Attorney
General of the United States to dictate to you as Solicitor
General what you have got to do even though you know it is
wrong under the rules and law?
Mr. Verrilli. Well, Senator, the Solicitor General----
Senator Hatch. You have the right to resign, but----
Mr. Verrilli. Yes, Senator. The Attorney General was given
the authority by Congress and has delegated that to the
Solicitor General, and the Solicitor General is exercising the
Attorney General's authority, and----
Senator Hatch. No. The Solicitor General is exercising
authority for our country.
Mr. Verrilli. Yes, absolutely. Absolutely. He is exercising
the judgment for our country.
Senator Hatch. And irrespective of the Attorney General,
and if you disagreed with the Attorney General, you know,
that--let us just say if you disagree with the Attorney
General, you have two choices, and you believe there is a
reasonable reason for bringing the case or it does not involve
the separation of powers, which are the two categories, then it
looks to me like the only choice you have--if the Attorney
General insists on making you do something you disagree with,
the only choice you would have would be to resign.
Mr. Verrilli. Well, I think resignation would be a very
weighty step.
Senator Hatch. Right.
Mr. Verrilli. I do not think, Senator, that disagreement is
the standard for resignation.
Senator Hatch. We are not just talking about disagreement.
We are talking about disagreement on principles that have long
been established in the Justice Department over whether or not
the Justice Department should act on behalf of the Congress--
well, on behalf of the statute duly passed by the Congress of
the United States. This is important to us. We really believe,
when we pass statutes up here, even when I am in the minority,
that those statutes ought to be defended by the Justice
Department unless you cannot find any reason to defend them or
they infringe on the power of the President.
Mr. Verrilli. Yes, Senator, and, you know, I think those
standards are the correct standards.
Senator Hatch. Well, then, if they are, why would you not
resign if you were told to do something that you did not
believe was right?
Mr. Verrilli. Well, I think, Senator, it is just----
Senator Hatch. I am not trying to get you to resign. I am
trying to get you in there as Solicitor General.
Mr. Verrilli. I am just trying to give you my best, honest
answer here. I think resignation is a very weighty step, and it
is 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 required me to
resign? Certainly yes. But is that every disagreement? No.
Senator Hatch. No, no. I am talking about----
Mr. Verrilli. And so it is somewhere----
Senator Hatch [continuing]. These principles that you
articulate are the principles. And I am also talking about the
fact that the Solicitor General is there for a real reason. And
if somebody politically tries to get you to do something that
is not right, no matter if it is the Attorney General or the
President, you have an obligation to stand up for what is
right, at least as you view it.
Mr. Verrilli. I have done my best to answer you, Senator. I
do think there are circumstances in which integrity and
principle would compel to decide to resign----
Senator Hatch. And there are circumstances where you would
resign if that conflict occurred.
Mr. Verrilli. Certainly, I cannot--as I said, it is very,
very hard to answer in the abstract, but certainly there are
circumstances----
Senator Hatch. I do not think it is hard. I think it is
just--if you disagree with them and it is a weighty issue and
the case for the Congressional statute meets those two
requisites and does not--you know, fits the standards that you
have discussed here, then it seems to me you have no choice--
rather than acting politically, you have no choice but to
resign. And I think that is a fair question. Like I say, I am
not trying to get you to resign in advance on anything. I just
want you to understand that it is that important that the
Solicitor General's office never be politicized in any way,
shape, or form, and that you live up to those two standards as
a reason for defending--look, forget DOMA. That is important to
a lot of us up here, but this is the Congress of the United
States. We pass statutes that we believe are constitutional.
Even if you do not believe that the statute is constitutional,
if there is a reasonable basis for arguing that it is, and if
it does not infringe on the President and separation of powers,
then it seems to me you have an obligation to go forward and
defend that statute on behalf of us up here--on behalf of the
Congress of the United States, one of the separated powers.
Mr. Verrilli. Those are the standards. I believe in them,
and I----
Senator Hatch. And you would live up to them?
Mr. Verrilli. I intend to live up to them if I am
confirmed.
Senator Hatch. Well, OK. I just want you to know I have
deep respect for you. We may disagree philosophically. I could
care less with regard to your nomination. I want to support
your nomination. And you can differ with me and still have my
support because of your abilities and your capacities. But
these are really important questions, and, frankly, a lot of us
are very upset that it looks like the Attorney General of the
United States--who I supported, by the way--has played a
political card rather than a legal card at the request of the
President of the United States. And that should not happen in
the Department of Justice. We all rely on the Department of
Justice to do what is right more than, I think, any other
Department. And Members of Congress rely on the Department to
sustain our statutes that we go through all kinds of pain to
get through the Congress and not be vetoed by the President.
So I just raise these issues because they are important
issues, and like I say, I have great respect for you. You have
a tremendous background, tremendous experience. There is no
question you are a tremendous lawyer. And I respect both you
and your wife, and I just wanted to make sure that we
understand these issues as well as we can. I would feel better
if you would say, ``Yes, I would resign before I would do
something I knew was wrong.'' I think you are saying that, but
I would like to hear it.
[Laughter.]
Mr. Verrilli. Well, Senator, I do believe that there could
be circumstances in which integrity and principle would compel
me to resign.
Senator Hatch. That is all I am asking. That is all I am
asking. And I do not want you to resign. I want you to
fulfill----
Mr. Verrilli. I am not there yet.
[Laughter.]
Senator Hatch. Well, I am trying to get you there, but you
are not cooperating. You are being rebellious, is all I can
say.
No, I just----
Senator Whitehouse. That is the independence you are
looking for.
Senator Hatch. That is right. Well, God bless you, and I am
very much supportive of you two women as well, and hopefully
you will do a very, very good job that will be apolitical in
nature and that will carry on the duties of the Justice
Department in your respective positions.
Thank you.
Senator Whitehouse. Senator Sessions.
Senator Sessions. I share Senator Hatch's views very, very
deeply, and I am very troubled by this White House and the
Attorney General in failing to defend DOMA, the Defense of
Marriage Act. It is unacceptable. It cannot be justified. It
was direct interference politically by the President of the
United States who during the campaign said he accepted and
supported this Act. To say that Act is indefensible
constitutionally cannot be justified. Two district courts have
upheld it, in Washington and Florida. Five Federal courts have
dismissed challenges to this Act. Two district courts have
found it unconstitutional. But to say it cannot be defended is
not correct.
And would you not agree that in terms of all the people in
the Department of Justice, the Solicitor General is the person,
often called the Tenth Justice of the Supreme Court, is the one
that has to stand firmest to defend the rule of law?
Mr. Verrilli. Yes, I absolutely agree with that, Senator.
Senator Sessions. And so I think Senator Hatch's question
about resignation is not a light matter. In other words, what--
I would suggest what should have happened. The Solicitor
General should have told the Attorney General, ``We cannot not
defend that statute. It does not comply with the law.'' And the
Attorney General should have told the President, ``I know you
may have changed your mind, Mr. President, but this is a
statutory law passed by the Congress of the United States. It
has been upheld constitutionally, and it has to be defended. We
cannot fail to defend that statute.''
And then what happens? I think what happens is the
President says, ``Well, OK. I wish you could. Are you sure you
cannot? '' ``No, we cannot, Mr. President. You cannot take that
position.'' And I think he would have backed off. If not, then
you have to resign.
That is the way the system works on a big issue like this
because this is politics, and I went through the matter with
now Justice Kagan, and I have to tell you that she took an oath
before our Committee when she was confirmed as Solicitor
General to defend this statute. Specifically she was asked
would she defend this statute, and she said yes. And in my
view--this is my--after looking at it very closely, in my view
Solicitor General Kagan systematically worked with the lawyers
attacking that statute to handle the appeals and the challenges
to it in a way that furthered the goals of the ACLU, who were
challenging it, and basically failed to aggressively defend the
statute.
So I would ask you this question: Not only should not as a
matter of integrity the Solicitor General defend the lawful
statutes of Congress, those if they have a basis to be defended
within the standards as you have articulated them, but don't
you have a duty to not in any way undermine the defense of
those statutes, take any action that would weaken the defense
of those statutes in court?
Mr. Verrilli. Senator, let me----
Senator Sessions. I am not asking you to agree with me
about Justice Kagan. I am just saying as a matter of duty, if
you share that word and the responsibilities it entails, that
your duty includes not only defending it in court, but also
taking no action that would weaken the defense of the statute.
Mr. Verrilli. Senator, with respect to DOMA, of course, I
was recused and, therefore, did not play any role in any of the
litigation, not merely the decision not to defend but any of
the litigation leading up to it. So I am not in a position to
comment with any particularity about the way the defense was
conducting. But going forward, Senator, if I am confirmed for
this position, I would, of course, understand that the duty of
the Solicitor General would be to defend those statutes that
must be defended and to do so vigorously and to do so in a
manner that does not undermine the defense of the statutes.
Senator Sessions. Well, I think that is somewhat--I think
that is accurate.
Mr. Chairman, my time is up, and I will just conclude to
say to me this is one of the more dispiriting things I have
seen. I spent 15 years in the Department of Justice. My view
was that a Solicitor General would never participate in what
this Department's Solicitor General has participated in, the
failure to defend the perfectly defensible statute. Maybe
people can disagree about its constitutionality, but not that
it is defensible or not. And I supported Attorney General
Holder and have tried not to be a carping critic any more than
necessary. But this one really hit me hard, and I think it goes
to the integrity of the Department. And if you attain this
position, you have got to be prepared to say no. And if you do,
the politicians normally come around. You do not have to do it
publicly. You just tell him, ``Mr. President, you cannot do
that. Mr. Attorney General, I cannot argue that way. You cannot
do it. It is wrong.'' And usually they will back down if you
will stand firm.
Thank you.
Senator Whitehouse. Indeed, it would appear that Assistant
Attorney General Comey did exactly that in the previous
administration and I think reflected great credit on the
Department in doing so. But the situation that we are presented
with here is that the decision has already been made. It was
made without Mr. Verrilli's participation. By the time he is
confirmed, if he is confirmed, it will be behind the
Department. It is not the Solicitor General's responsibility to
go back and relitigate prior decisions that have been made. And
I think that whatever our disagreements may be about the DOMA
statute, it is not--blame is not ascribable to Mr. Verrilli in
any portion, nor is this a decision that will be before him in
his career because it has already been made. This decision has
been taken.
Senator Sessions. Well, I am trying to determine whether or
not the next time another political interference in the rule of
law occurs, pushed by the President of the United States or the
Attorney General, whether this man will say no or not. That is
what we are asking. And I think--I love the Department of
Justice. I believe in the rule of law. And I have just got to
say I sat here through attack after attack after attack because
the Attorney General fired some United States Attorneys to put
somebody else in and was accused of demeaning the integrity of
the Department of Justice, and I think it was the normal kind
of things that occur in appointment processes. But this goes to
the integrity of the Department, the core of the integrity of
the Department. At the highest levels it is unacceptable. And I
hope that, if you are confirmed, you would have learned from
this experience, and if you stand firm, usually they will back
down.
Mr. Verrilli. Thank you, Senator. I appreciate the advice
very much.
Senator Whitehouse. Let me conclude with--I left myself a
little bit out of the questioning because by virtue of chairing
I am always the last one here, so it is easier to let other
people go and then wrap up. I just have a few points and
questions.
Ms. O'Donnell, with respect to Senator Franken's questions,
we have the same situation in Rhode Island; we have backed up
DNA evidence and other evidence. As you know as a prosecutor
from your days at the United States Attorney's Office, if the
forensic evidence takes too long to develop, that can have a
dramatic impact on the testimonial evidence. Witnesses
disappear, their memories fade. It can compromise a case in
very significant ways. While it is sitting there on the shelf,
not only is potentially the evidence itself degrading, but the
rest of the case is degrading as well. And anything that you
can do to use your good offices to try to reinforce the States
who are under immense budget pressure are having to deal with
this issue I think would be very welcome, and I would
appreciate that.
To Mr. Verrilli, I would just wish you well. I think that
the point has been made that while there are disagreements that
in your view would arise to the level of relatively minor
disagreements, you can see the other side of the argument, for
instance, and it is not the kind of disagreement with a
superior that justifies having to resign rather than follow an
order that you feel is wrong or inappropriate. I think the
point of the questioning that you have received is that it
needs to be clear to this Committee that you understand that
the responsibilities of the Solicitor General can very well put
you in that position, and you need to be willing, when those
circumstances are appropriate, to take that step as necessary.
And I think you made that point, but let me give you a chance
to make that crystal clear.
Mr. Verrilli. Yes, Senator, there is no doubt that if
circumstances arose in which I thought as a matter of operating
with personal integrity, as a matter of principle, and as a
matter of ensuring fidelity to the rule of law that it was
necessary for me to resign rather than carry out an order, then
I would certainly do so.
Senator Whitehouse. Thank you.
Ms. Seitz, we talked about this in my office briefly, and I
do not want to belabor the point. But as a graduate of the
Department of Justice, I remain concerned by the matter that we
talked about in my office, which is that the standard that the
Margolis memo applies to the Office of Legal Counsel in terms
of what the Department and its Office of Professional
Responsibility expect of the Office of Legal Counsel is in my
reading of it lower than what is expected of a regular
practitioner hustling into court with bundles of files under
his arms in a local trial court until the rules of professional
conduct obligations of candor to the tribunal. And I hope that
you will review that while you are there because I think it is
a mistake for the Office of Legal Counsel, which has people of
remarkable intellect and integrity, exercising sometimes our
gravest national responsibilities, and in a position in which
some of the checks and balances in an open courtroom do not
apply, there is no opposing counsel to enlighten the tribunal
as to the lack of candor of his or her adversary, and the
tribunal--in this case, the President of the United States--
might not have either the capacity or the learning or the sense
of a judge to engage in the kind of independent judgment that
it is a judge's job to evaluate advocates' arguments with.
So when you stack up the rule--I think it is 3.3--standard
and you think of the situation in which that is applied and
under which regular, ordinary lawyers are subject to
discipline, it seems to me that the standard should be at least
that high for the hyper-talented lawyers of the Office of Legal
Counsel. So please take a look at that. If that could be
corrected, I think that closes the last open issue with respect
to that unhappy period in the Department's history.
Ms. Seitz. Thank you, Senator. I will.
Senator Whitehouse. And, finally, on the Affordable Care
Act, just as a piece of unsolicited advice, I come from Rhode
Island. We have guaranteed issue, which means that our
insurance companies cannot refuse coverage to people just
because they have a pre-existing condition. And we have
accomplished that without any kind of a formal mandate that
people have coverage. Massachusetts under the Romney plan did
that, but Rhode Island has not, and I believe the other States
are like us. And I say that to illustrate that there is no
necessary connection between the so-called mandate and the
other portions of the bill. And if the mandate has to fall,
then Rhode Island stands as an example of how the other
elements of the bill, particularly the restriction on chucking
people off their insurance because they have pre-existing
conditions, can nevertheless survive. And there has been a
certain amount of sort of talk out there about how the mandate
is the keystone piece and it is intrinsically linked to these
other elements, and I would hate to see that develop in any way
into the United States' position in that case because I think
it is just plain wrong as a matter of both fact and logic. And
it would be a shame if the mandate were to fall if it dragged
other things down with it unnecessarily. If the mandate were to
fall, that becomes the problem of the insurance industry, which
was the beneficiary of the mandate to solve politically either
in this body or at the State level where they have absolutely
no constitutional restrictions on them.
So you may not be conversant in how the health care laws of
the different States apply, but I wanted to make sure you were
aware that this supposed link between the mandate and the
protection of children with pre-existing conditions was an
accommodation of politics in this room and is not logically
necessarily, and we proved that in our State.
I wish all of you well. You will be serving, touch wood, in
a great Department, one of which many of us are very, very
proud. I think you sense that in the questioning today from
both sides of the aisle, and we wish you well in your future
positions in that Department.
The record will be open for one further week for written
follow-up questions. It goes without saying that the quicker
you respond, the quicker you will be considered. So I urge
rapidity as well as accuracy and completeness in the responses.
With that, the hearing is adjourned and, again, I thank you
all for your commitment to public service, for the
extraordinary talents that you bring to this hearing, and I
congratulate your families on what is a very auspicious day.
Mr. Verrilli. Thank you, Senator.
Ms. Seitz. Thank you.
Ms. O'Donnell. Thank you, Senator.
[Whereupon, at 4:30 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record.]