[Congressional Record Volume 157, Number 80 (Monday, June 6, 2011)]
[Senate]
[Pages S3485-S3488]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Judge Richard Linn
Mr. LEAHY. Mr. President, on the first day of this millennium,
January 1, 2000, the newest Federal judge, and the first of the
millennium, was sworn in. Richard Linn became a member of the Federal
Circuit Court of Appeals at the stroke of midnight, standing in the
Federal Circuit's courthouse, with a view of the Washington Monument
lit behind him, and the oath being administered by Chief Judge H.R.
Mayer.
President Clinton had been told of the hundreds of nominations he
would make during his Presidency, one he would never regret would be
that of Judge Linn. How true that prediction. Judge Linn has brought
dignity, expertise, and judicial excellence that could set the model
for all our Federal courts. His calm but brilliant analyses of our most
complex intellectual property cases reflect the extensive experience he
had before going on the bench. This experience now benefits all
Americans.
My wife Marcelle and I and our children have been privileged to have
known Dick and Patti Linn for over a generation, as well as their
wonderful daughters, Debbie and Sandy, and all their family. This
weekend, their children, son-in-law Erik, and grandchildren, Jaret and
Dakota, as well as other members of their family, will gather to unveil
a portrait of Judge Linn. I hope that as people visit the Federal
Circuit Court of Appeals building or are there on business, that they
will pause and look. It will give them a chance to see the face of
justice and a man I admire greatly.
Mr. President, I ask unanimous consent that we go back on the matter
before us, with the time still being reserved to me.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. I thank the majority leader and the Republican leader for
reaching an agreement for the Senate to debate and vote on the
nomination of Don Verrilli to be Solicitor General of the United
States. By doing so, we were able to vitiate the cloture motion and
avoid another unnecessary filibuster. Had agreement not been reached,
this would have been the first filibuster in history of a Solicitor
General nomination.
Mr. Verrilli is by all accounts one of the finest lawyers in the
country, whose extensive experience as an advocate for a wide variety
of clients will serve him well as Solicitor General, the top advocate
for the United States. In a long and distinguished career, Mr. Verrilli
has argued numerous cases before the Supreme Court, Federal appeals
courts and State appellate courts. He clerked for Judge J. Skelly
Wright on the DC Circuit and for Justice William Brennan on the U.S.
Supreme Court. Mr. Verrilli's impressive breadth of experience both in
Government and in private practice led the Judiciary Committee to
report his nomination by a vote of 17-1 nearly a month ago. Seven of
the eight Republican members of the committee joined in supporting Mr.
Verrilli's nomination.
The Judiciary Committee heard from many respected lawyers from across
the political spectrum in support for Mr. Verrilli's nomination. Eight
former Solicitors General from both Republican and Democratic
administrations, among them Republicans Charles Fried, Kenneth Starr,
Ted Olson, Paul Clement and Gregory Garre, concluded: ``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.''
More than 50 prominent Supreme Court practitioners urged the Senate
to confirm Mr. Verrilli's nomination, including conservatives like
Maureen Mahoney, Peter Keisler, and Miguel Estrada. They wrote:
[[Page S3486]]
Don's approach to practicing law throughout his career--his
meticulousness in understanding and presenting facts
accurately and his insistence on coherently laying out
reasons for the positions he is urging--proves beyond
question that Don will protect and promote the rule of law.
I will ask that copies of the letters in support be printed in the
Record at the conclusion of my remarks.
Don Verrilli is exactly the kind of superbly qualified, serious
professional we should be encouraging to serve the American people in
their government. I expect that he will be confirmed by a strong
bipartisan majority of the Senate.
Like all of the nominations reported by the Judiciary Committee and
pending on the Senate's Executive Calendar, Mr. Verrilli's nomination
has been through the Judiciary Committee's fair and thorough process.
We reviewed extensive background material on his nomination. All
Senators on the committee, Democratic and Republican, had the
opportunity to ask him questions at a live hearing. All Senators had
the opportunity to meet with Mr. Verrilli individually, as well. Many
also took advantage of the opportunity to ask him questions in writing
following the hearing.
We then debated and voted on his nomination. I thank the members of
the committee for their work, consideration and judgment. Many cited
their meetings with Mr. Verrilli and his serious and thoughtful answers
to hundreds of written questions for the record as a basis for their
support of his nomination. The result of the process was that Senators,
having raised whatever concerns they had and whatever differences they
have with the policies of the Obama administration, voted nearly
unanimously in favor of confirming Mr. Verrilli based on his
qualifications, experience and appreciation for the responsibilities of
the Solicitor General.
I appreciate the effort made by the Republican members of the
Judiciary Committee in considering the Verrilli nomination on its
merits and voting to support him, with one exception. I appreciated the
thoughtful statement by the ranking Republican at our markup, nearly 1
month ago, in which he set forth his concerns and the painstaking
process he followed to evaluate the nomination and his judgment to
support him. Senator Grassley attended the hearing, met personally with
the nominee, and engaged in extensive written questioning, as well. In
his statement he commended Mr. Verrilli ``for his serious approach to
the task of providing responses'' and for his ``thoughtful answers.''
After that rigorous process, Senator Grassley became more comfortable
that Mr. Verrilli ``understands the duty of the Solicitor General.'' He
emphasized that Mr. Verrilli had made clear to him that ``he would not
lend his name or that of the office to carrying out any order which he
believed to be based upon partisan political considerations or other
illegitimate reasons'' and that rather than do so, he would resign from
office. Senator Grassley concluded that he has ``every expectation that
Mr. Verrilli, if confirmed, will honorably live up to his duties,
obligations, and assurances.''
The committee process left no doubt that Mr. Verrilli has an
extensive knowledge of the law and an understanding of the independence
required to represent the interests of the government and the American
people as the Solicitor General of the United States. He is well
qualified and well suited to serve in the role of what is often called
``the tenth Justice.''
The Senate has a longstanding practice of giving deference to the
President to make nominations for positions in the executive branch.
However, as we have seen with more and more of President Obama's
nominations, Senate Republicans have dramatically departed from our
Senate standards. This does great harm to the interests of the American
people, the ability of good people to serve, the capacity of the
government to fulfill its responsibilities and the proper functioning
of the Senate. Subjecting consensus nominees to unnecessary and
damaging delays and unjustified and harmful filibusters is wrong. I am
glad the Senate leaders have been able to come to agreement to avoid
the threatened filibuster of this qualified nominee to serve as
Solicitor General of the United States.
Before the Memorial Day recess, the Senate should have confirmed the
nomination of Lisa Monaco to be the Assistant Attorney General in
charge of the National Security Division at the Justice Department.
That is a key national security position. The Judiciary Committee held
a hearing on Ms. Monaco's nomination in April and reported her
nomination unanimously in early May. Her nomination has since been
considered by the Senate Select Committee on Intelligence at an
additional hearing and was reported unanimously by that committee, as
well, nearly 2 weeks ago. After such a thorough process, there is no
doubt that President Obama has made a first-rate choice to fill this
very critical national security position. The value of Ms. Monaco's
wealth of experience and institutional knowledge has been supported by
the many former Justice Department officials who have written in
support of her nomination, including former Attorney General Mukasey,
who served during the President George W. Bush administration. Without
cause or explanation, the Republican leadership still has not consented
to a vote on this important national security nomination.
Even more egregious is the unprecedented filibuster of the nomination
of Jim Cole to be Deputy Attorney General, the No. 2 position at the
Justice Department also with key national security responsibilities.
There is no excuse or justification for the continued failure to act on
Mr. Cole's nomination to fill this critical position. It was blocked
last year when it was pending for 5 months in the Senate. The
nomination was reported favorably by the Judiciary Committee again in
March, and incredibly, has been filibustered for another 10 weeks while
the country faces concerns about terrorism in the aftermath of the
President's successful operation against al-Qaida and Osama bin Laden.
It is hard for me to understand how, at a time when experts are
concerned that al-Qaida will seek reprisals, the Senate has not acted
to ensure that President Obama has his full national security team in
place. Instead, Senate Republicans have chosen to delay action on those
nominations and to seek to use them as leverage against the
administration.
I have urged Senate Republicans to reject this partisan approach and
to come together to work with our President to keep America safe. In
the aftermath of 9/11, we expedited law enforcement nominations,
confirming an additional 58 officials to posts at the Justice
Department before the end of 2001. We should have done the same with
the nominations of Lisa Monaco and Jim Cole. We should treat Mr. Cole's
nomination with the same urgency and seriousness with which we treated
all four of the Deputy Attorneys General who served under President
Bush. All four were confirmed by the Senate by voice vote an average of
21 days after they were reported by the Judiciary Committee. No Deputy
Attorney General nomination has ever been subjected to a filibuster
before. It is wrong and should end.
I am confident that Mr. Verrilli's qualifications, experience,
ability, temperament and judgment will lead to an overwhelming
bipartisan vote in support of his confirmation to serve as the next
Solicitor General of the United States.
Mr. President, I ask unanimous consent to have printed in the Record
copies of the letters to which I referred.
There being no objection, the material was ordered to be printed in
the Record, as follows:
February 8, 2011.
Re Nomination of Donald Verrilli as Solicitor General.
Hon. Patrick J. Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Washington,
DC.
Hon. Charles E. Grassley,
Ranking Member, U.S. Senate Committee on the Judiciary,
Washington, DC.
Dear Chairman Leahy and Ranking Member Grassley: We write
in enthusiastic support of the nomination of Don Verrilli to
become the next Solicitor General of the United States. We
write as lawyers who are deeply familiar both with the work
of the Solicitor General and with Don's own work and
character. Some of us have worked jointly with Don, some of
us have appeared opposite him in cases, all of us have seen
his work. We believe that 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 leads. We urge the Senate to confirm him as
Solicitor General.
[[Page S3487]]
With experience representing a wide variety of clients, and
several years serving the United States from within the
government at its highest levels, Don is unusually
experienced in the vast range of legal issues over which the
Solicitor General is responsible on behalf of the United
States. He is a quick study, careful listener, and acute
judge of legal arguments. He is a masterful writer and oral
advocate who knows the importance of clarity, candor, vigor,
and responsiveness. The array of departments and agencies the
Solicitor General represents, the Congress that enacts the
laws being executed, and ultimately the Supreme Court in the
performance of its functions all rely on these qualities in a
Solicitor General, and all would be well served by Don
Verrilli in that position.
As important, 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. More generally, the rule of law depends on a
consistent commitment to reason in the unfolding of legal
principles. Don's approach to practicing law throughout his
career--his meticulousness in understanding and presenting
facts accurately and his insistence on coherently laying out
reasons for the positions he is urging--proves beyond
question that Don will protect and promote the rule of law.
Finally, Don has a deeply ingrained habit of civility. Not
only in court, but in private interactions, with co-counsel,
colleagues, and lawyers who are adverse to his clients, Don
maintains his equanimity and politeness and engages in calm,
reason-based discussion. His character will serve the highest
traditions of the Solicitor General's office.
We expect that the Senate, after full inquiry, will see all
the virtues we know from firsthand experience that Don
possesses. He is the consummate professional, and we hope
that the Senate will confirm Don promptly to serve as the
Solicitor General.
Sincerely,
Richard G. Taranto,
Farr & Taranto.
Carter G. Phillips,
Sidley Austin LLP.
The following people have signed on to this letter:
Akin Gump Strauss Hauer & Feld, LLP: Patricia Ann
Millett; Arnold & Porter: Lisa S. Blatt; Covington &
Burling: Jonathan Marcus; John P. Rupp, Robert Long;
Crowell & Moring: Clifton S. Elgarten, Susan Hoffman;
Farr & Taranto: Bartow Farr; Finnegan, Henderson,
Farabow, Garrett & Dunner: Donald Dunner; Gibson Dunn &
Crutcher LLP: Theodore B. Olson, Miguel Estrada,
Theodore J. Boutrous Jr., Thomas G. Hungar; Goldstein,
Howe & Russell, P.C.: Thomas Goldstein, Amy Howe, Kevin
Russell; Hogan Lovells: H. Christopher Bartolomucci,
Catherine E. Stetson; Howrey: Gerold Ganzfried; Jenner
& Block LLP: Paul Smith; Jones Day: Donald Ayer, Craig
E. Stewart, Meir Feder; Kellogg Huber: David Frederick,
Michael Kellogg, Aaron M. Panner; Kirkland & Ellis:
Christopher Landau; King & Spalding: Daryl Joseffer;
Latham & Watkins: Richard P. Bress, Maureen E. Mahoney,
Matthew Brill; Jonathan Massey; Mayer Brown LLP:
Stephen M. Shapiro, Andrew L. Frey, Andrew Pincus, Evan
M. Tager, Charles Rothfeld, Lauren Rosenblum Goldman,
David M. Gossett, Jeffrey W. Sarles.
Molo Lamken: Jeffrey Lamken; Morgan, Lewis, & Bockius
LLP: Peter Buscemi, Allyson N. Ho; Morrison Foerster:
Deanne E. Maynard, Brian R. Matsui; O'Melveny & Myers:
Walter Dellinger, Sri Srinivasan, Jonathan Hacker;
Orrick, Herrington & Sutcliffe LLP: E. Joshua
Rosenkranz; Paul Hastings: Stephen B. Kinnaird;
Pillsbury Winthrop: Kevin M. Fong, Claudia W. Frost;
Quinn Emanuel Urquhart & Sullivan LLP: Kathleen
Sullivan; Robbins Russell: Roy Englert; Ropes & Gray
LLP: Douglas H. Hallward-Driemeier; Sidley Austin LLP:
George W. Jones, Paul Zidlicky, Rebecca Wood, Jeffrey
Green, Jacqueline Cooper, Peter Keisler, Eric Shumsky,
Mark Haddad, Joseph Guerra, Robert Hochman, Michelle
Goodman; Skadden, Arps, Slate, Meagher & Flom LLP:
Cliff Sloan; Venable: John Cooney; Wiley Rein LLP:
Andrew G. McBride, Helgi C. Walker; Williams &
Connolly: Kannon K. Shanmugam, Stephen Urbanczyk;
Willkie Farr: Richard Bernstein; Wilmer Cutler
Pickering Hale and Dorr: Seth P. Waxman, Paul R.Q.
Wolfson, David Ogden, Randolph Moss; Zuckerman Spaeder
LLP: David Reiser.
____
Washington, DC,
March 17, 2011.
Re Nomination of Donald B. Verrilli Jr. for the Position of
Solicitor General.
Hon. Patrick J. Leahy,
Chairman,
Hon. Charles Grassley, Ranking Member, U.S. Senate Committee
on the Judiciary, Washington, DC.
Dear Chairman Leahy and Ranking Member Grassley: We have
served as Solicitors General in the administrations of
Presidents Ronald Reagan, George H.W. Bush, William Clinton,
and George W. Bush. We write in strong support of the
nomination of Donald Verrilli to become Solicitor General of
the United States.
Some of us have worked alongside Mr. Verrilli as co-
counsel; some of us have appeared opposite him in cases; all
of us are familiar with his work, his demeanor, and his well-
deserved reputation as a leading member of the Supreme Court
bar. We believe Mr. Verrilli is ideally suited to carry out
the crucial tasks assigned to the Solicitor General and to
maintain the traditions of the Office the Solicitor General.
Mr. Verrilli's long experience representing a wide array of
clients, in combination with his recent experience serving in
senior positions in government, render him particularly well
qualified to address the range of legal issues over which the
Solicitor General is responsible on behalf of the United
States. His well-deserved, stellar reputation as both a
writer and oral advocate, and his deeply ingrained civility
and dedication to the rule of law will well serve all three
branches of government. We wholeheartedly endorse his
confirmation.
Respectfully,
Seth P. Waxman
For:
Charles Fried (1985-1989).
Kenneth W. Starr (1989-1993).
Drew S. Days III (1993-1996).
Walter E. Dellinger III (1996-1997).
Seth P. Waxman (1997-2001).
Theodore B. Olson (2001-2004).
Paul D. Clement (2004-2008).
Gregory G. Garre (2008-2009).
Mr. GRASSLEY. Mr. President, I will vote to confirm Donald B.
Verrilli, Jr., to be Solicitor General of the United States, but I do
so with little enthusiasm. Mr. Verrilli has impressive credentials and
noteworthy accomplishments. In addition to his government service in
the White House Counsel's Office and at the Department of Justice, he
has been a litigator in private practice for more than 20 years. He has
argued 12 cases, and participated in more than 100 cases, before the
Supreme Court of the United States. Mr. Verrilli served for over 15
years as an adjunct professor of constitutional law at the Georgetown
University Law Center. He clerked for Associate Justice William J.
Brennan, Jr., of the U.S. Supreme Court, and Judge J. Skelly Wright of
the U.S. Court of Appeals for the District of Columbia Circuit.
My concern with this nomination is whether or not the nominee will
demonstrate appropriate independence in the office. His testimony at
his hearing raised doubts about his ability and commitment to uphold
that principle. Mr. Verrilli seemed to buy into the notion that he was
still the President's lawyer. He gave lipservice to the two traditional
exceptions to the Solicitor General defending a statute--first, if the
statute violates separation of powers by infringing on the President's
constitutional authority; and second, if there is no reasonable
argument that can be advanced in defense of the statute. Mr. Verrilli
then appeared to create a third exception one that is not supported by
practice or tradition. He stated he would defend a statute's
constitutionality ``unless instructed by my superior not to do so.''
This position advocated by the nominee--that interference in the rule
of law, by the President or by the Attorney General, is an appropriate
reason not to defend statutes--was extremely troubling to me and other
members of the committee. That position is not the standard of the
office. It is not what the Nation expects from its Solicitor General.
His response gave me great pause about supporting his nomination.
Following his hearing, I gave Mr. Verrilli ample opportunity to
address my concerns. In extensive written questions I asked the nominee
to review and comment on testimony given by previous Solicitor General
nominees. In particular, I asked many questions regarding statements by
prior Solicitors General regarding the independence of the office. I
asked him to review cases where the Department of Justice had made a
determination not to defend a statute. I asked him to analyze those
cases as to the rationale for not defending the statute. In addition, I
asked him to review and comment on a number of Supreme Court cases that
address serious constitutional issues.
I reviewed his answers to my written questions for the record. I
commend Mr. Verrilli for his serious approach to the task of providing
responses. In most cases he gave thoughtful answers.
[[Page S3488]]
In many instances he declined to provide his views on the topic but
gave general assertions that he would follow the law. In other
instances he claimed confidentiality. I do not agree with his assertion
of confidentiality in most of the instances where he raised that as a
basis for not responding. In other circumstances, such a response would
be unacceptable. In the past, such responses, or allegations of similar
responses, have resulted in a failed confirmation or withdrawal of the
nomination.
Based upon my review of his responses, I am more comfortable with the
notion that Mr. Verrilli understands the duty of the Solicitor General.
I believe, because of my questions and the time he spent contemplating
the issues, he will be a better Solicitor General than he otherwise
would have been. Mr. Verrilli has been exposed to decades of thought
and experience by this review. On the whole, I concluded that Mr.
Verrilli now has a greater sensitivity to the necessity of independence
in the office. In numerous answers he provided a much better response
than he did at his hearing. He indicated he would not lend his name or
that of the office to carry out any order which he believed to be based
on partisan political consideration or other illegitimate reasons.
Rather than do so, he said he would resign from office. I will hold him
to that pledge.
I want to be clear about my tepid support for Mr. Verrilli. He is
nominated to an executive branch position, not a lifetime appointment.
My lukewarm support is based largely on the nature of the office to
which he will be appointed, if confirmed.
I will put the administration on notice, as well as Mr. Verrilli, the
Senate, the media, and any other interested party. My less than
enthusiastic vote for Mr. Verrilli to be Solicitor General of the
United States is limited to that office alone. No entity or individual
should presume my support for Mr. Verrilli for any other future office
to which he may aspire or to which he may be nominated--be it in the
executive, judicial, or legislative branch of government.
Furthermore, as ranking member of the Judiciary Committee, I will
vigorously carry out my oversight responsibilities to ensure the
Solicitor General and his subordinates are performing as they should. I
will be watching to make certain Mr. Verrilli complies with his oath of
office, with his obligation to the Constitution and statutes of the
United States, with his duties of the office, and with the assurances
he has given the Senate in his oral and written testimony. I expect
nothing less from all officials of government. I have every expectation
that Mr. Verrilli, if confirmed, will honorably live up to those
duties, obligations, and assurances.