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Solicitor general's performance inspires both critics and defenders
By Tom Curry, msnbc.com National Affairs Writer
Little known outside the elite world of Supreme Court lawyers only a few weeks ago, Donald Verrilli has become famous -- or notorious, depending on one’s point of view -- for his oral arguments before the high court in the health care cases last month and in the Arizona illegal immigration case this week.
Observers have panned Verrili’s performances and point to comments by some of the justices showing impatience with how he made the Obama administration’s case.
Justice Sonia Sotomayor told Verrilli during Wednesday’s oral argument, “General, I'm terribly confused by your answer. Okay? And I don't know that you're focusing in on what I believe my colleagues are trying to get to.”
"Obama's Lawyer Chokes Again" the Drudge Report headlined Wednesday, while in The Daily Beast, Arizona journalist Terry Greene Sterling, called Verrilli’s performance “a humiliating slap-down of the U.S. solicitor general … Verrilli lost focus and failed to drive home key points.”
“There have been a lot of attacks on the left on Verrilli,” said University of Wisconsin political scientist Ryan Owens, co-author of The Solicitor General and the United States Supreme Court: Executive Branch Influence and Judicial Decisions, an empirical study of the performance of solicitors general.
“There’s some grumbling that he hasn’t performed ably,” Owens said. “If he loses this Arizona case, then you might start to see calls” for Obama to find a new solicitor general.
“It seems to me, though, that the president is in a kind of complicated political position here. Let’s assume that the court strikes down the individual mandate and assume that the court sides with Arizona,” Owens said. “If he replaces Verrilli, it makes it difficult to make the Supreme Court look like it is activist -- and it seems he’s going to try to do that as he runs for re-election. Instead it looks as though Verrilli sort of lost the case.”
The solicitor general’s job is to decide when the United States should appeal a case it has lost in a lower court and when it should file an amicus brief in a case in which it is not a party. The solicitor general doesn’t personally argue every Supreme Court case involving the federal government -- he has a staff of lawyers who argue many of them -- but he does often argue the highest profile ones.
Among those who have served as solicitor general, five have gone on to become justices of the Supreme Court: William Howard Taft, Robert Jackson, Thurgood Marshall, Stanley Reed and Elena Kagan.
Some high court observers think the current denigration of Verrilli is unwarranted.
The criticism “has been overstated and at times unfair,” said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, a liberal legal think tank. “His arguments, along with the briefs filed in the health care and Arizona cases give the justices every argument they need to side with General Verrilli in both cases. While I wish he would have emphasized the Constitution's text and history more, because those sources are so strongly on the Administration's side in both cases, that is a strategic judgment call more than a criticism."
Andrew Pincus, a partner in the Mayer Brown law firm who has argued 23 cases before the Supreme Court and is co-director of Yale Law School’s Supreme Court Advocacy Clinic, said the criticism was “completely unfair and completely inaccurate.”
He said, “In order to assess whether someone is doing a good job in a Supreme Court oral argument, you have to understand what a Supreme Court argument is: It’s not a speech; it doesn’t have to be flowery, it’s not pretty. The whole notion is to provide answers to the concerns that animate the justices’ questions – and do so in a way the advances your cause both with that justice and with court as a whole.”
He added, “I’ve read some people who say, Gee, the solicitor general didn’t make some of the arguments that were suggested by some of the questions by justices who appeared to be favorably inclined in the health care argument.”
But he said, “My guess is if I were him, I would have done exactly what he did -- because a lot of the arguments that were being suggested would alienate other justices whose votes are probably critical to the outcome of the (Affordable Care Act) case.”
Many accounts of Wednesday’s Arizona argument mentioned the awkward moment in when Sotomayor told Verrilli, “Putting aside your argument that this -- that a systematic cooperation is wrong -- you can see it's not selling very well -- why don't you try to come up with something else?”
But Pincus said, “It’s quite typical that justices say, ‘your argument isn’t convincing me.’ It may be the only argument that’s available. And it may be an argument that’s not necessarily directed to the justice who’s asking the question, but is directed to some other justices who may have a different perspective.”
He added that statements the solicitor general makes in oral argument “are quoted back to the government later in the Supreme Court, in lower courts. You can’t just say, ‘I’ll say anything to win this case.’”
In sum, Pincus said, “No one could ever know if the (oral) argument is why you win or not – and in 99.9 percent of the cases, it almost certainly isn’t.”
Owens agrees with that assessment up a to a point: “While the quality of oral argument is not the primary driver of justices’ decisions, a strong performance can increases a party’s odds of success -- so in this particular (Arizona) case it’s quite possible that a stronger argument by the solicitor general might have persuaded Justice Kennedy or Chief Justice Roberts. It’s too early to tell where those justices are going to come down. It’s quite possible that Verrilli’s argument, as weak as it seems to have been, maybe it did win the day,”
Pincus said it’s a mistake to imagine that a virtuoso performance by the solicitor general – as in Hollywood movies where a lawyer saves his client from the death penalty – will tip a case in the government’s favor.
“It’s not like you’re going to walk into the courtroom and come up with a new legal argument that no one has thought of before and really wow them. Eighty-five percent of your presentation is the written product (the legal briefs),” he said. “In fact the court would be quite surprised and it would be an admission of weakness in your case and not having thought it through, for you to stand up and say, ‘Throw out everything I’ve said in the written briefs. I’ve now got a great new idea!’ It’s the writing of the briefs that frames the legal argument in the case.”
While in Congress and the news media outside the Supreme Court, the burning issue in the Arizona immigration case was whether the Arizona law was on its face invalid because it would require racial profiling, that it’s not the argument the Obama administration chose to make.
Instead it argued that the state was treading on the federal responsibility to regulate immigration.
Roberts made that quite clear in his very first question to Verrilli as soon as he stood up to begin on Wednesday: “No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.” Verrilli replied, “That's correct.”
If the Arizona is allowed to stand and is enforced, the racial profiling issue may be decided in some future case.