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 

( 
CONFIRMATION HEARING ON DONALD B. VERRILLI, JR., OF CONNECTICUT, NOMIU.S. DEPARTMENT OF JUSTICE OF NEW YORK, NOMINEE TO BE DIRECTOR, BUREAU OF JUSTICE ASSISTANCE, LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE; AND DENISE E. O’DONNELL, OF VIRGINIA, NOMINEE TO BE ASSISTANT ATTORNEY GENERAL, OFFICE OF NEE TO BE SOLICITOR GENERAL OF THE UNITED STATES; VIRGINIA A. SEITZ, 
U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

74–503 PDF 2012

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 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

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 
Page

IV 

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 
(1) 

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 pun-
2 

ishing 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 Pro-
3 

gram, drug courts, the Byrne/JAG program, Federal assistance to 

State prescription drug monitoring programs, and the Prisoner Reentry 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 
4 

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 
5 

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 
6 

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 allmale 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 
7 

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 
8 

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. 
9 

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 law-
10 

yer’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. 
11 

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 
12 

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.] 
13 

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 
14 

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 stand-
15 

ards, and I am humbled at the opportunity to take on that challenge. 

Thank you. 

[The biographical information of Mr. Verrilli follows.] 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 
51 
52 
53 
54 
55 
56 
57 
58 
59 
60 
61 
62 
63 
64 
65 
66 
67 
68 
69 
70 
71 
72 
73 
74 
75 
76 
77 
78 
79 
80 
81 
82 
83 
84 
85 
86 
87 
88 

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.] 
89 
90 
91 
92 
93 
94 
95 
96 
97 
98 
99 
100 
101 
102 
103 
104 
105 
106 
107 
108 
109 
110 
111 
112 
113 
114 
115 
116 
117 
118 
119 
120 
121 
122 
123 
124 
125 
126 
127 
128 
129 
130 
131 
132 
133 
134 
135 
136 
137 
138 
139 
140 
141 
142 
143 
144 
145 

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.] 
146 
147 
148 
149 
150 
151 
152 
153 
154 
155 
156 
157 
158 
159 
160 
161 
162 
163 
164 
165 
166 
167 
168 
169 
170 
171 
172 
173 
174 
175 
176 
177 
178 
179 
180 
181 
182 
183 
184 
185 
186 
187 
188 
189 
190 
191 
192 
193 
194 
195 
196 
197 
198 
199 
200 
201 
202 
203 
204 
205 
206 
207 

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. 
208 

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. 
209 

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 
210 

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 
211 

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. 
212 

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 
213 

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 nonpolitical 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 
214 

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. 
215 

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 rea-
216 

sonable 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 initia-
217 

tive 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. 
218 

[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 21⁄2

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 
219 

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 
220 

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 
221 

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. 
222 

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? 
223 

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 
224 

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 
225 

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 
226 

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 followup 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.] 
227 
228 
229 
230 
231 
232 
233 
234 
235 
236 
237 
238 
239 
240 
241 
242 
243 
244 
245 
246 
247 
248 
249 
250 
251 
252 
253 
254 
255 
256 
257 
258 
259 
260 
261 
262 
263 
264 
265 
266 
267 
268 
269 
270 
271 
272 
273 
274 
275 
276 
277 
278 
279 
280 
281 
282 
283 
284 
285 
286 
287 
288 
289 
290 
291 
292 
293 
294 
295 
296 
297 
298 
299 
300 
301 
302 
303 
304 
305 
306 
307 
308 
309 
310 
311 
312 
313 
314 
315 
316 
317 
318 
319 
320 
321 
322 
323 
324 
325 
326 
327 
328 
329 
330 
331 
332 
333 
334 
335 
336 
337 
338 
339 
340 
341 
342 
343 
344 
345 
346 
347 
348 
349 
350 
351 
352 
353 
354 
355 
356 
357 
358 
359 
360 
361 
362 
363 
364 
365 
366 
367 
368 
369 
370 
371 
372 
373 
374 
375 
376 
377 
378 
379 
380 
381 
382 
383 
384 
385 
386 
387 
388 
389 
390 
391 
392 
393 
394 
395 
396 
397 
398 
399 
400 
401 
402 
403 
404 
405 
406 
407 
408 
409 
410 
411 
412 
413 
414 
415 
416 
417 
418 
419 
420 
421 
422 
423 
424 
425 
426 
427 
428 
429 
430 
431 
432 
433 
434 
435 
436 
437 
438 
439 
440 
441 
442 
443 
444 
445 
446 
447 
448 
449 
450 
451 
452 
453 
454 
455 
456 
457 
458 
459 
460 
461 
462 
463 
464 
465 
466 
467 
468 
469 

Æ