The Mystery of Donald Verrilli’s Supreme Court Choke

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Art Lien / Reuters

U.S. Solicitor General Donald Verrilli, right, in this courtroom illustration, speaks to Justice Antonin Scalia, (left to right) Chief Justice John Roberts and Justice Anthony Kennedy of the U.S. Supreme Court in Washington March 27, 2012.

After Donald Verrilli’s halting performance defending a national health-insurance mandate before the Roberts court on Tuesday, the White House Wednesday morning issued a statement of support for their beleaguered solicitor general.

“Mr. Verrilli is an extraordinarily talented advocate who possesses a sharp mind, keen judgment and unquestionable integrity,” White House Counsel Kathryn Ruemmler said. “He ably and skillfully represented the United States before the Supreme Court yesterday, and we have every confidence that he will continue to do so.” There’s little doubt about that first part. But in legalese, we might call Ruemmler’s view of Tuesday’s events a dissenting opinion.

Verrilli’s performance was widely panned, and boosters of the health-reform law have been among his harshest critics. “Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom,” wrote Adam Serwer, “because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.” Verrilli repeated phrases and struggled to answer some of the tougher questions from Justices Anthony Kennedy, Antonin Scalia and John Roberts. Here’s 40 seconds of Verrilli’s spluttering and harumphing, edited together by Buzzfeed to illustrate the brain freeze he experienced before the court.

It’s a mystery how this happened. Verrilli doesn’t lack for pedigree or experience. A Yale grad, former editor of the Columbia Law Review and First Amendment law professor at Georgetown, Verrilli has argued before the Supreme Court 17 times and participated in more than 100 high-court cases. His victories include a 9-0 ruling in the prominent 2005 case MGM v. Grokster, which established that companies like peer-to-peer file sharers can be held liable for copyright infringement if their marketing encourages piracy. He headed the Supreme Court outfit at Jenner & Block, a national private firm where John Paul Stevens once worked, and joined the Obama administration in 2009, where he served in a variety of roles in the Justice Department and at the White House. After Elena Kagan went to the Supreme Court, Verrilli was confirmed 72-16 as Obama’s new Solicitor General last June. Ken Starr, SG under George H.W. Bush, has called Verrilli “brilliant, highly effective” and “the voice of sweet reason from the podium.”

If there was ever a time in his professional life to bring the sweet reason, Tuesday was it. The saying goes that you can’t win a case in oral arguments, but you can lose one. Briefs and lower court opinions may prove more decisive in the High Court’s ruling, but if the Affordable Care Act’s mandate is struck down in June, many will wonder if it was Verrilli who blew the case.

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