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.