“As you get closer to the argument, the tension rises,” Verrilli said in a recent interview in his corner office at the Justice Department. “But it’s a wonderful experience. I feel incredibly privileged to be here right now doing this. It’s amazing.”
The solicitor general is the government’s top appellate lawyer and the United States’ representative at the Supreme Court; the 54-year-old Verrilli’s predecessor is the court’s newest justice, Elena Kagan.
Verrilli is at the forefront of the Obama administration’s efforts to defend the Patient Protection and Affordable Care Act and will argue all three days when the court begins its extraordinary examination of the law next Monday.
Arguing before the justices is nothing new for him. He has had 17 cases before the high court, five of them since he was confirmed as solicitor general in June, and is a part of the small world of lawyers immersed in the court.
After his undergraduate years at Yale and Columbia Law School, he served as a clerk to Justice William J. Brennan Jr. He was part of a team that helped prepare Justice Stephen G. Breyer for his confirmation hearings.
“I wouldn’t call myself a Supreme Court specialist,” Verrilli said. “Unlike some of the folks in the private sector who do Supreme Court work, my practice when I was in the private sector was always a mix of trial and appellate work.”
Verrilli handled First Amendment and telecommunications cases as a partner at Jenner and Block, and he is noted in part for his role in representing motion picture studios and music recording companies against makers of file-sharing software that the companies said induced stealing.
Verrilli represented 28 of the largest entertainment companies in
Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd.,
which he won 9 to 0. Untold amounts of money were at stake in the case, and Verrilli learned how to please many different bosses.
Moot courts — in which Verrilli practiced the arguments he would make to the justices — were held in auditoriums to accommodate all of the companies’ lawyers, he said.
It was another Supreme Court case that Verrilli said had a more lasting effect on him.
Verrilli and his firm for more than 10 years represented Maryland death-row inmate Kevin Wiggins, who drowned 77-year-old Florence Lacs in her bathtub. Verrilli handled Wiggins’s appeal of his death sentence and uncovered evidence never presented to the jury of Wiggins’s horrific childhood, in which he suffered repeated physical and sexual abuse from his mother and the foster families with whom he later was sent to live.
The Supreme Court’s 7 to 2 decision in
Wiggins v. Smith
set aside Wiggins’s death sentence on the grounds that his right to effective counsel had been violated. The decision established new rules on what a lawyer must do to investigative a client’s background and present mitigating evidence.
“It was — I’m searching for words here because it’s hard to find them — that case meant a very great deal to me,” Verrilli said. “At some level, it helped me understand what it means actually to be a lawyer.
“I was this guy’s champion in the world, and I was that for 10 years. And if it wasn’t me, it wasn’t going to be anybody else.”
Later, Verrilli would argue before the court that the three-drug protocol used in most lethal injection executions throughout the country could violate the Constitution’s protections against cruel and unusual punishment. The justices disagreed in
Baze v. Rees
7 to 2.
Verrilli’s advocacy raised questions from Republicans on the Senate Judiciary Committee about how he would defend capital punishment if he were called on to do so on behalf of the federal government.
“Whatever personal views I might have respecting any legal issue will play no role in the discharge of my obligations,” Verrilli replied.
Verrilli said he made the move to government service because he had always wanted to work at the Justice Department and because of President Obama.
“I essentially took the view that, once the president was elected in November 2008, I would be happy to do anything at the Department of Justice, including sweeping floors,” Verrilli said.
That admiration for Obama also prompted some critical questions at Verrilli’s confirmation, especially after he testified that “at the end of the day, the solicitor general works for the attorney general, who works for the president,” and that he would defend a statute passed by Congress “unless instructed by my superior not to do so.”
In written answers to follow-up questions, Verrilli said he had not been clear enough on the “vital importance of the independent judgment a solicitor general must exercise.”
If he were convinced that an order from the attorney general or president “was based on partisan political considerations or other illegitimate reasons, or on an indefensible view of the law, I would resign rather than carry out the order.”
Verrilli wins praise from others who have held the job.
“I’m a big fan of Don Verrilli,” said Theodore J. Olson, who was President George W. Bush’s first solicitor general. “He’s a superb lawyer and perfect gentleman.”
So gentlemanly, in fact, that at a recent appearance before a group of corporate lawyers at Georgetown Law Center, Verrilli was praising another former solicitor general, Paul D. Clement, who will argue for the 26 states trying to overturn the health-care act.
Verrilli called Clement, who was seated with him on stage, “an extraordinary, extraordinary lawyer.” He said Clement had written a “phenomenal brief” in the health-care case. “I commend it to you as an example of how to write an effective brief,” Verrilli told the lawyers.
Verrilli would not discuss the merits of the health-care issue either at the event or in the interview, but he said his low-key manner and niceties should not be misinterpreted.
“I’m intensely competitive. Oh, yeah, I’m intensely competitive,” he said.
“I’m up there to win.”
For previous High Court columns, go to washingtonpost.com/fedpage.