Solicitor General’s Oral Argument Performances and the Wobbly Critiques that Followed

May 3, 2012

by Jeremy Leaming

Following recent high-profile appearances before the Supreme Court, U.S. Solicitor General Donald Verrilli came under withering, but more than likely meritless attacks.

Commentators on the left and right trounced on Verrilli’s oral argument presentations in the cases over the landmark health care reform law and Arizona’s viciously anti-immigrant law.

After oral argument in the Arizona case, the Drudge Report blared, “Obama’s Lawyer Chokes Again.” Numerous other commentators focused on Justice Sonia Sotomayor’s questioning of Verrilli, suggesting that her colleagues were not being swayed by his arguments.

The attacks on Verrilli (pictured) came quickly in March after Verrilli defended the health care law’s minimum coverage provision, which requires Americans, who can afford to do so, to start carrying health care insurance in 2014.

Adam Serwer for Mother Jones piled on, blasting the solicitor general as unprepared, and advancing mere “jargon and talking points.” A close read of the oral argument transcript, however, shows that Verrilli repeatedly advanced the arguments the government had made in its briefs filed with the Supreme Court.

Serwer added, that if the landmark health care law is upheld by the high court, “it will be in spite of Verrilli’s performance, not because of it.”

Serwer, however, may be right about one thing. If the health care law’s minimum coverage provision survives Supreme Court scrutiny, it will likely not have much to do with oral argument theatrics.

Several lawyers who have actually argued cases before the high court said the criticisms are overblown and uninformed.

Andrew Pincus, a partner at Mayer Brown, has argued more than 20 cases before the Supreme Court, and recently told MSNBC’s Tom Curry that criticisms leveled at Verrilli were wobbly at best, likely overwrought.

“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,” he said.

Pincus, an ACS Board member, noted that the government had made its arguments in support of the law in the briefs it lodged with the high court, and that Verrilli’s job was not to introduce new arguments during oral argument.

“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). 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.”

Walter Dellinger, former Solicitor General during the Clinton administration, and partner at O’Melveny & Meyers LLP, following oral argument in the health care case, also took umbrage with Verrilli’s critics.

“First of all, I think the outcome of the adjudication on the mandate is not possible to determine based on oral argument,” Dellinger said at an ACS briefing on oral argument in HHS v. Florida.

After going through the transcript of the oral argument, Dellinger said, “I thought [Verrilli] did an excellent job. If you read the transcript, you can see that he stated the case for this act – he stated it clearly, he defended it, he made all of the essential points that he wanted to make, he did the excellent job that an advocate needs to do of returning time and again to the essential themes, and he stated the limiting principles that should allay any concerns about sustaining this law.”