RENEE MONTAGNE, host:
Senate Republicans expressed their anger, yesterday, over the Obama Administration's decision not to defend in court the Defense of Marriage Act, which defines marriage as between a man and a woman. This didn't happen at a hearing on the act. It was a confirmation hearing for two top Justice Department jobs that've been vacant for a very long time. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The office of legal counsel advises the president about what he can and cannot do under the law. The job has not been filled with a confirmed officeholder for seven, yes, you heard me right, seven years.
Democrats opposed the Bush administration's choice, Steven Bradbury, because he had signed three controversial so-called torture memos. And Republicans blocked President Obama's first nominee, Dawn Johnsen.
Mr. Obama's second nominee, noted appellate lawyer Virginia Seitz, had an unexpectedly easy time yesterday at her confirmation hearing, largely because the focus was on another nominee, Donald Verrilli, who, if confirmed, would become the solicitor general, the government's advocate in the U.S. Supreme Court.
The spark for the questions to Verrilli was President Obama's decision not to defend DOMA, the Defense of Marriage Act, in court. Republican senators noted that the tradition of the Justice Department is that the solicitor general defends laws enacted by Congress, unless those laws impinge on presidential authority or there's no reasonable argument that can be made.
Although nominee Verrilli currently serves as deputy White House counsel, fortunately for him, he was recused from the decision on DOMA because the law firm he once worked for is involved in the legal challenge to the law.
That didn't get him off the hook, entirely, though. Republican senators said it was crucial to know that Verrilli would act independently, as other solicitors general have done. Here, for instance, is an exchange with Utah's Senator Orrin Hatch.
Senator ORRIN HATCH (Republican, Utah): 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 says otherwise, will you defend that statutes or not - or resign?
Mr. DONALD VERRILLI (Nominee, Solicitor General): Senator, I would defend the statute unless instructed by my superior not to do so.
Senator HATCH: Well, see that's not a good answer.
TOTENBERG: But Verrilli refused to be drawn into a discussion of DOMA because, as he noted, he didn't know the ins and outs of the case.
Mr. VERRILLI: It's 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 require me to resign? Certainly. Yes. But is that every disagreement?
Unidentified Man: No. No.
Mr. VERRILLI: No.
TOTENBERG: Verrilli pointed to rare occasions when previous solicitors general have initially defended a law in the lower courts but refused to do so on appeal. But Republicans were not appeased. Alabama's Jeff Sessions.
Senator JEFF SESSIONS (Republican, Alabama): You've got to be prepared to say no. And if you do, the politicians normally come around. You don't have to do it publicly. You just tell him, Mr. President, you can not do that. Mr. Attorney General, I can not argue that way. You cannot do it. It's wrong. And usually they'll back down if you'll stand firm.
Nina Totenberg, NPR News, Washington.
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