[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.