UPDATE Tuesday a.m. The White House formally announced Donald Verrilli’s nomination Monday. (The press release is here.) Note that he has argued 12, not 10, cases before the Supreme Court.
President Obama has turned to his White House legal staff for a new U.S. Solicitor General, selecting associate counsel Donald B. Verrilli, Jr., to be the government's top advocate before the Supreme Court, the White House was telling various news organizations on Monday. A veteran of ten arguments in the Court, Verrilli has had a key role in several important legal initiatives in the Obama Administration "“ perhaps most significantly, an attempt to put some limits on the government's use of the controversial "state secrets" doctrine.
By choosing Verrilli, the President passed over Neal K. Katyal, the Deputy SG, who has been heading the SG’s office on an acting basis since Obama's first SG "“ Elena Kagan "“ was named to the Supreme Court. Katyal has argued a number of major cases for the Administration as Acting SG — most recently, in fact, a “state secrets” case involving a Pentagon warplane contract.
Verrilli, who formerly was co-chair of the Supreme Court and appellate practice of the law firm, Jenner & Block, has been a part of the Obama Administration since 2009, when he became an associate deputy attorney general in the Justice Department. Previously, he had served as a special counsel to President Clinton.
Working in the Justice Department, he was a colleague of his close friend, Attorney General Eric Holder, and of his former boss at Jenner & Block "“ Tom Perrelli, now associate attorney general.
White House Counsel Bob Bauer took Verrilli out of the Justice Department last February, and added him to the Counsel's staff. He has remained in that role since.
In private practice, Verrilli specialized in telecommunications and copyright work. Among his most notable victories in the Supreme Court was in a case that helped close down the file-sharing network, Grokster, in a case pursued by the music industry. Among pro bono assignments he took in Supreme Court cases, he unsuccessfully challenged the most widely used method of capital execution using lethal drugs.
Verrilli’s nomination as SG must be approved by the Senate. It is highly likely that members of the Senate Judiciary Committee will seek to probe what role, if any, he had in Attorney General Holder’s since-abandoned decision to try those charged with 9/11 terrorist crimes in a civilian court, the nature of his role at the Department or in the White House in developing policy for Guantanamo detainees, and what he did at the Department to try to re-shape the doctrine of “state secrets” — that is, the government claim of a need to protect national security secrets as a way of limiting or shutting down lawsuits against the government.
In selecting Verrilli over Katyal, one factor that was said to be at work was that Verrilli is older and more experienced.
Katyal, though, might have had difficulty with some Repulican senators over his pre-government role as a legal defender of Guantanamo detainees’ rights — the role he played, in particular, in Hamdan v. Rumsfeld, in which the Supreme Court struck down the former Bush Administration’s plan for military commission trials of suspected terrorists.