The Guy Who Choked in Front of the Supreme Court

Solicitor General Donald Verrilli has become the left's fall guy for wilting like a flower in front of the Supreme Court today while defending the Obama administration's individual mandate, a key provision of the Democrats' health reform bill.

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Solicitor General Donald Verrilli has become the left's fall guy for wilting like a flower in front of the Supreme Court today while defending the Obama administration's individual mandate, a key provision of the Democrats' health reform bill. Until today, conventional wisdom held that the court would uphold ObamaCare's individual mandate by a close 5-4 vote. But Verrilli's bruising performance in front of conservative justices Antonin Scalia, Samuel Alito and others has transformed the media calculus and observers are letting him know it.

"Reading the transcript of today's Supreme Court hearing, it suddenly hit me: Donald Verrilli is the new Billy Cundiff," tweeted The New Yorker's Alex Koppelman, in a reference to the star-crossed Baltimore Ravens placekicker. Offering up an alternative sports analogy, The Huffington Post's Jason Linkins tweeted "Donald B. Verrilli, Jr. is apparently the JaVale McGee of Solicitor Generals," referring to the Denver Nuggets' troubled center. Remarking on his cadence, The Atlanta Journal-Constitution's Jamie Dupree wrote "from the outset, Verrilli seemed nervous, as he coughed during one of his opening lines, re-started his presentation to the Justices, and then interrupted himself to reach down for a glass of water." He adds, "his voice seemed to warble while he almost stammered at times in a search for words." The Washington Post's Ezra Klein says like-minded justices even tried to help him out as he struggled along. "You can mark -- p 14 -- when liberal justices decide Verrilli is screwing up and step in," he tweets.  "Yup. It's an incredible moment," adds writer Alex Klein. BuzzFeed's Zeke Miller went ahead and spliced together all of his stumbles and stutters, and uploaded it to YouTube.

Yikes! What a day in court. The exchanges Verrilli's critics point to are ones involving Scalia and Ginsburg. At one point, Verrilli gets caught up trying to explain why it makes sense for the government to mandate insurance while it doesn't make sense for the government to make you eat broccoli. "The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary," he said. "Is that a principled basis for distinguishing this from other situations?" interjects Scalia. After some more back and forth, Ginsburg comes to his rescue. "Mr. Verrilli, I thought that your main point is that, unlike food or any other market, when you made the choice not to buy insurance, even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money." Verrilli responds gratefully, "that is." 
So who is this poor fellow? What might surprise some who are just catching up on the solicitor general's background, is the stellar way he's been written up in the press prior to the case. Last week, The New York Times called him the "lawyer who can simplify the complex" and championed his credentials. "Mr. Verrilli, a veteran of 17 cases before the Supreme Court, five of them since taking over as solicitor general, has been an advocate for the rights of death row inmates and has successfully argued fine points of telecommunications law. He has also had at least 30 cases before federal appeals courts and state supreme courts."
One aspect of his background that the Times' Ian Urbina appears to have wisely latched onto is his lack of experience in dealing with this particular piece of legislation. "This will be the first time he has argued the health care law in public," writes Urbina. But unsurprisingly, Verrilli's peers speak gushingly of him in the article. “He will be able to make the best case for the legislation,” said Theodore B. Olson, who served as solicitor general under President George W. Bush. Neal Katyal, a Georgetown law professor, said he's “poised, confident, concise and brilliant.”
If the Times piece on Verrilli was favorable, the profile on him by NPR's Nina Totenberg was a work of hagiography. 

"Indeed, his unflappability and keen intellect were so appreciated by the White House that the president stole Verrilli for his own staff, making him deputy White House counsel," said Totenberg who had only nice things to say as she ticked off his success representing large commercial interests alongside pro bono causes. "Those who knew his work sang his praises, while he remained largely unknown to most of official Washington. When it came to nominating a new solicitor general to replace now-Supreme Court Justice Elena Kagan, there was never much doubt in the West Wing as to who would get the job. For 'no drama Obama,' the quiet and intellectual Verrilli was perfect."

Of course, no one is perfect and even the most stellar lawyer can have a bad day. Giving him a pass, Ezra Klein added "Verrilli is weak, but more so b/c the justices were hostile to his argument. That's the important info here." Dupree adds "let's be fair - if the Obama Administration loses this case, it won't be Verrilli's fault; but his presentation on Tuesday was not air tight for the justices by any means."

This article is from the archive of our partner The Wire.