Donald Verrilli Jr. Quotes
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I feel so blessed to have had the chance to do this job [ U.S. Solicitor General] in this moment in our history. It's been an incredible thing.
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People have got to make their best calls in what they think about a case when they're covering it. But I do think the lesson there, and I guess stating the obvious, that oral argument can as often send a false signal as an accurate signal about where the thing is going.
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Justice [Sonia]Sotomayor said, "Let's talk - you want to talk about the tax power."And I got like a 10-minute run on the tax power. And, boy, was I glad I did because I was able to get across this idea that, yes, this is a narrower ground on which you can affirm it. And I think everybody agrees. I think even the dissenting justices ultimately in the case agreed that, if Congress had expressly called it a tax, it would be indisputably constitutional.
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The president [Barak Obama] had been asked some questions by George Stephanopoulos on a news show about whether it was a tax. And he had given an answer that you might read as him saying it wasn't a tax. I think what he said was, "It isn't a tax increase on all Americans."
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If you've ever been in the West Wing, it's like a little rabbit warren. Everybody's crammed in there on top of each other, and you're eating breakfast, lunch, and dinner at the mess with people. And so you really get to know each other very well. So, I think they just weren't worried.
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I had a great deal of independence from the president and the White House during the entirety of my five years. And I'm not sure exactly what that is, but our friend, Walter Dellinger, has a theory about it, and I think he's probably right. And the theory starts with the fact that I worked in the White House for a year and a half before coming over to the position of SG. And because of that, when I was nominated, there was some chatter out there that, "Oh. They're putting a political hack in. This has never happened before."
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Sometimes one of the justices, because they're, you know, they're brilliant lawyers themselves, can put the question in a particular way so that, even if you've prepared to talk about the topic, the question is put in such an excruciatingly difficult way that there's just no good way to handle it.
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The part that the public sees is the arguments up at the podium and the briefs that we file. But a significant part of the job - in fact, I'd say I spend more of my time on this part of the job, which is deciding what the position of the United States will be in the cases that we're going to be participating in before the court.
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Very quickly the lawyers in the Justice Department pulled together a set of recommendations about how we ought to defend the law as a constitutional matter. And it was the lawyers in the Justice Department who thought that it was important to include the tax power argument as part of it.
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There was only really one time that I had a substantive interaction with the president [Barak Obama] directly, and that was in 2013 when we were deciding whether to file a brief in the first gay marriage case, the Perry against Hollingsworth case. That was a weighty decision about whether the United States government was going to come in and say that heightened scrutiny ought to apply and some state bans on same-sex marriage ought to be unconstitutional. And that was the one time in my tenure where I thought I ought not make this decision without talking to the president.
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I do a little bit of hand-holding on the big cases. You know, like health care, I'll call over and say, "Don't worry. We've got it under control. We have the best people working on it. We're on schedule. Stay calm." So, those kinds of things.
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The cases involving the question of whether U.S. courts should be open to claims of international human rights violations brought by foreign persons against foreign government officials. And the State Department on the one side has got a very consistent and powerful view that U.S. courts should be open to those claims because there needs to be a place in the world where they can be brought. And those human rights norms ought to be real and enforceable, and we ought to be a beacon to the world.
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Watch what happens on Twitter. One thing leads to another very quickly. And in an ironic sense, even though it's such a democratic form of communication, there's a funny way in which it leads to a hardening of a conventional wisdom much more quickly than might happen if you were reflecting on it a little more.
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The fact that you have a policy of such consequence directly affecting millions of people and you have a legal question of great consequence about the scope of the president's authority to act in implementing the immigration laws in this way and you have a one-line decision from the court affirming by an equally-divided court, it's an inevitable consequence of where we are.
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It's the spring of 2012, that the [Barak] Obama administration would be embracing the argument that the Affordable Care Act was a tax, and that was going to, itself, be a political albatross.
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My job was always to pull a vote over from somebody who was likely to be at least at the outset disinclined to agree with me on some things or at least disinclined to agree with the policy that I was defending.
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I did think Justice [Antony] Kennedy's opinion on Lawrence was critical to that because it really, what Lawrence in one sense was, of course, about consensual sex being something that the government can't regulate. But really in a more fundamental sense, what it was saying, "Look. Gay people are normal people, and they get to live normal lives. They're not criminals by virtue of the fact of being gay."
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I'm arguing for progressive positions on behalf of a progressive administration in front of a court who, before Justice [Antonin] Scalia's death, had a conservative majority that was quite conservative, frankly.
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I do think that the instant nature of the reaction now, I do think it has an effect, that people's instant reactions to things are valid and valuable. But they're not always right, and they're not always capturing the full reality.
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Brett Kavanaugh is a brilliant, brilliant judge and one of the most-distinguished conservative jurists in the country.
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There was a huge movement that led up to [gay marriage legilization], and I played a small role in the great scheme of things. But it was really a privilege to get to do it.
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Quite often there's a great deal of disagreement within the executive branch about what we should do. Some cases are pretty straightforward, but a lot of them aren't.
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What we once thought of as necessary and proper reasons for ostracizing and marginalizing gay people, we now understand do not justify that kind of oppression.
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After a couple of years, I realized that this was actually true, that his gave me the ability to go to a different place and, hopefully, have a stronger impact.
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I think what happened is that everybody's impressions got formed in those first few minutes. And I felt like, by the latter part of it, I kind of clawed my way back into the discussion. But everybody's impressions were set at the beginning. And wholly apart from me and whether I was good or bad, you know, there were a lot of hostile questions.
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I do think it's true that a huge amount of the oversight that the White House engages in with respect to the Executive Branch is out of fear that somebody's going to do something crazy and drive the president off a cliff.
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I'm representing the United States. And I'm representing the United States, and my office is representing the United States day after day in front of the court. And I think it's the right thing to do, to carry that out with some dignity and some respect for the process and respect for the institution. And so that led me to just, you know, move the dial a little bit in the direction of calmness.
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One thing I've experienced and I feel really grateful for now that I'm on my way out is that I felt that the justices gave that back to me. I really did. You know, of course, you can have some sharp exchanges. That's the nature of the thing, and that's fine. But really in the main I felt like the tone from them was, "Yeah. We may not agree with you, but we're going to have a discussion about this." And it did.
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If people can live openly and be equal, then you have to have a pretty strong reason to say they can't get married.
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When we're not a party, we sometimes file as amicus, as friend of the court, 25, 30 times a term, sometimes more. And in each of those cases, we've got to decide what position the government's going to take. And that is the solicitor general's job to make that decision.
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