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Attorney General Eric Holder, who, along with Agriculture Secretary Tom Vilsack and Education Secretary Arne Duncan, is one of the last remaining original Obama administration cabinet members, is resigning. According to NPR's Carrie Johnson, the leading contender is Donald Verrilli, who currently serves as Solicitor General, the federal government's representative to the Supreme Court. He's not a sure thing (Obama is making a statement at 4:30PM eastern) but here are two basic things to know about Verrilli in case he is the pick.
1) He's file sharers' worst nightmare
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What Grokster.com looks like now, after Verrilli got done with it. (Grokster)
Holder was a career prosecutor. He joined the Department of Justice straight out of law school, was a judge in Washington, DC, for five years, then served as DC's top prosecutor and Deputy Attorney General under Clinton. The George W. Bush administration was his only period not working for the government. Verrilli, by contrast, had never served in government before the Obama administration, excluding clerkships at the DC Circuit Court of Appeals and the Supreme Court. He worked for two decades at Jenner & Block, a prestigious national firm with a significant Supreme Court practice, of which he was a part, arguing 12 cases before joining the administration.
Perhaps Verrilli's most significant private client was the Recording Industry Association of America, and he worked on a number of copyright-related cases on the side of copyright holders. He successfully argued MGM Studios v. Grokster, in which the Supreme Court held that entertainment companies could sue peer-to-peer services like Grokster for copyright infringements committed by their users. Before joining the Obama administration as associate deputy attorney general in 2009, he coordinated an infringement lawsuit by Viacom against YouTube that has since been settled after a number of court rulings in favor of YouTube and its parent company Google.
So it's not too surprising that copyright reform activists are skeptical of Verrilli. When his name surfaced as a potential Solicitor General, Harvard law professor and copyright expert Larry Lessig said, "Wow. That's awful. Certainly another slap in the face of the Netroots community." As Vox's Tim Lee has pointed out, there's been a bit of a revolving door between the entertainment sector and the White House where trade policy is concerned, so it's perhaps unsurprising that the administration would similarly draw from the sector in staffing the Justice Department.
To be fair, copyright work wasn't the totality of Verrilli's practice. He successfully argued, pro bono , Wiggins v. Smith , a case in which he represented a death row inmate who appealed his sentencing on the grounds that his public defenders failed to provide adequate representation. Wiggins has since been resentenced to life in prison after the Court ruled for him. Verrilli also worked on four other pro bono death penalty cases, including the Supreme Court case Montejo v. Louisiana, which he lost.
2) He was the guy who defended Obamacare
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Obamacare is apparently rather controversial. (Joe Raedle/Getty Images News)
At the time, Verrilli's defense of the Affordable Care Act before the Supreme Court was considered a catastrophe, a performance that "may go down as one of the most spectacular flameouts in the history of the court." The New York Times' John Broder cited a study finding that Verrilli "was cut off 180 times during the three days of arguments, interrupted after speaking for 10 seconds or less more than 40 percent of the time." "He stuttered, he stumbled, he paused for a drink of water," The Daily Beast's Ben Jacobs wrote. "Verrilli seemed more like a nervous first-year law student than a respected advocate who had appeared before the court on 17 previous occasions."
But Verrilli was vindicated when the Supreme Court largely upheld the law. The New Yorker's Jeffrey Toobin, one of Verrilli's most vocal critics, said on CNN at the time, "This is a day for Don Verrilli to take an enormous amount of credit, and for me to eat a bit of crow, because he won, and everyone should know that that argument was a winning argument, whatever you thought of it."
Verrilli has had a mixed record as Solicitor General. He argued the federal government's case against Arizona's draconian immigration law, which the Court largely backed. He made oral arguments in 2013's same-sex marriage cases, arguing against the Defense of Marriage Act and California's Proposition 8 respectively; the former was struck down, while the court avoided taking a position on the latter, leaving in place a previous decision striking it down in California.* He beat an ACLU challenge to the FISA Amendments of 2008, which reduced protections against government wiretapping in investigations concerning foreigners.
But his defense of campaign finance restrictions in McCutcheon v. FEC failed, as did his defense of Obamacare's birth control mandate in the Hobby Lobby case. The Court rejected his defense of the Voting Rights Act and struck down one of its key provisions. The Court voided FCC fines against Fox for airing expletives by Cher and Nicole Ritchie during award shows, after Verrilli had defended the FCC. His defense of the Stolen Valor Act, which banned lying about military honors, also failed, as the act was struck down on free speech grounds.
Clarification: This sentence was amended; previously it stated that the Court "struck down" Proposition 8, and while its ruling had the effect of nullifying the Proposition its ruling deflected on the substance. The sentence was updated to reflect that nuance.
