March 28, 2012

How bad was the SG in yesterday's oral argument?

Well, he certainly started off bad. I don't think once he got going, he was as much of "train wreck" as Jeffrey Toobin seemed to think, but something was really off. Here I am, knowing what Toobin had said, listening yesterday, for the first time, to the recording of Solicitor General Donald Verrilli's argument.

63 comments:

Scott M said...

That is one of the clips I just heard in the car. It's not the traniest-wreciest I've ever heard (Al Sharpton gets that award), but given the gravitas of the venue, it's pretty close.

Is that face of cruel neutrality, AA? :)

Seven Machos said...

The thing I think you all, including Althouse, must admit is that this whole spin of Obama-wants-to-lose is a post-facto analysis. There was no great hue and cry about the Commerce Clause when this law was passed. It was even so famously said that Congress had to pass the law to find out what was in it.

No, the truth is that Obama believed he was triangulating in the realm of political brilliance of Bill Clinton. He thought he was getting a law that would be popular with the middle. And, please recall, Obama went to great expense and lengths to convince the country that Obamacare is good and great.

All the constitutional arguments came after the dust had settled, after a few truly awesome libertarians such as Randy Barnett went to work, and after various states did read the law, and realized for various reasons that it either could be or had to be litigated against.

I also add that Obama losing here -- and possibly Obama winning here -- is removing the great albatross of Romneycare from Romney. If Romney is smart -- and he is -- there is really no conceivable way that doesn't come from any decision looking better than he does now.

Rob said...

If, as you speculate, the Solicitor General was very sick, what does that tell us about Government-sponsored health care?

edutcher said...

Sounds more like allergies (I speak from personal experience), and, if he's taking something for them, a little decongestant can really hammer you.

PS You look very tired, Madame.

I think we all appreciate the effort required to make this understandable for those of us who aren't "liggle iggles", as my mother used to put it.

Rabel said...

I'll repeat a comment from yesterday (note the throat clearing reference):

You guys (and gals) criticizing SG Verilli's presentation must be wrong.

Because NPR said when he was appointed:

"At 54, Don Verrilli Jr. stands tall and calm in the Supreme Court chamber, his salt and pepper mustache the only thing about him that bristles. His deep, baritone voice suggests to the justices that he is the essence of reasonableness. There are no histrionics. Indeed, if he gets backed into a corner, his voice just gets deeper. Only the occasional, needless throat-clearing betrays any nerves at all."

Nina Totenberg wrote that so I know it a true and totally objective judgment.

traditionalguy said...

Caption contest: The Brain From Outer Space contemplates earthlings.

Ann Althouse said...

@Seven I noticed that Rush Limbaugh, yesterday, said Obama would rather win this case than be reelected. He'd be fine, like: My work is done and now I'm off to play golf in Hawaii. Enjoy my legacy!

Also, the Obama-wants-to-lose is a playful theory, not exactly serious. What is serious is that Obama has a plan for how he will use a loss, and there are some excellent applications.

Rabel said...

"Pot had helped, and booze; maybe a little blow when you could afford it."

Also, you look terrific. For a woman your age.

drozz said...

Could be a Reagan/Mondale debate situation. Verilli was given too much info to remember.

Not likely, but just throwing it out there

Richard Dolan said...
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Richard Dolan said...

The suggestion that the SG was not up to the task is just a lot of spin, offered preemptively to take the sting out of a likely loss. None of the justices cared that he had a bit of dry-mouth when he started, and so needed a drink of water, or that he occasionally tripped over a word. At times, they did the same thing in their questions.

The reality is that the SG's problem was substantive, not sylistic. He had no convincing answer to the justices who thought that, in a system of enumerated and limited powers, it's important to be able to specify the limits. Everyone knew that question was coming, and he tried to deflect its force by, first, citing precedent to say that there was no need for the Court to draw lines to define what was beyond Congress' powers, but need only address whether this statute was within them. His second argument was all about the supposed uniqueness of health care. That's what he had to say, and he said it. No one on the Court missed his point. It was also clear that none of the justices for whom the issue was important was really moved by it.

For the justices who thought the question and its answer were both beside the point (Breyer for sure, and perhaps others), the supposed 'lifeline' they were throwing the SG was no help at all in addressing the concerns of the justices who began from the opposite premise.

Anyone who has argued appeals has had a moment or two when you just don't have a good answer to a hostile question. It usually has everything to do with a weakness in the legal argument, not a deficiency in the skills of the legal advocate. That's just another way of saying that there are two sides to most issues.

Toobin and the other talking heads surely know all of that. The 'how bad was the SG' stuff is just spin, and spin always has it own agenda. It's not hard to see what that is here.

james conrad said...

I really dont think there is any grand conspiracy here, the SG seemed to me to have a bad case of hay fever. His basic problem? His client rammed through on a party line vote an unconstitutional law that touches every american. They used the uninsured as a vehicle for a power grab of the health care system & arguing the facts was gonna be a tough dealio all round no matter how good the lawyer is.

Seven Machos said...

Obama is obviously smart, just like Romney, but I don't think he is very reflective. I really don't think he has the capacity to understand politics, and I still think he believes himself to be very popular. I can't wait for the Obama aide memoirs to come out, which I predict will paint a picture of a tone-deaf man with no concept of what regular people think or feel or believe.

So, whatever Obama's plan is for a loss, it's probably a bad plan. Just like his plan to get the Olympics in Chicago. Just like his plan to hug it all out with various countries. Just like his his plan to tame the recession and just like all of his plans. The extent of any of Obama's plans really, truly seems to be, "I'll show up and it'll work out because I am Obama."

james conrad said...

Richard Dolan,
Great post! i think you are 100% correct.

Quayle said...
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Quayle said...
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PatCA said...

I think when the justices openly mock the bill (Scalia's 8th Amendment barb) the admin should be worried. And we should be hopeful!

Quayle said...

The conscientiousness and personal ethic that made a great attorney was his undoing when he had no plausible substantive argument.

Rule #1 of weaselry: never send an honest man to lie for you.

If AG Holder had argued this case there wouldn't have been any sniffles, repetition, or throat clearing.

There would have been pure smooth honey for all.

edutcher said...

Seven Machos said...

I can't wait for the Obama aide memoirs to come out, which I predict will paint a picture of a tone-deaf man with no concept of what regular people think or feel or believe.

Haven't we already seen a couple of those, or are they just second hand reportage?

Quayle said...

Obama is obviously smart, just like Romney, but I don't think he is very reflective. I really don't think he has the capacity to understand politics,

I agree.

My sense is that Obama's world view, far from being informed, thoughtful and progressive, is shallow, platitudinous, and wholly incoherent.

Seven Machos said...

Ed -- I mean the books and the New Yorker articles. Those are where the action will be. They have to have action, or no one will buy them.

And so, we will read things akin to what we read in Donald Regan's book, which was that Nancy Reagan insisted on aligning major policy decisions and actions with astrology.

Alex said...

The left just can't get around Justice Kennedy's quote about "does Congress have the right to create commerce". That's utterly devastating to the left and why they're going apeshit all over the interwebz right now.

Alex said...

Will Obama dare run against the SCOTUS as his primary election strategy? Never before in US history has it happened, but I wouldn't put it past the Alinsky-ite.

traditionalguy said...

The Professor's mind is assessing the divisive power plays possible for the artist at dividing people and conquering them by tactics of smoothly misdirecting both sides with the confidence of a professional thief.

The damage Obama's methods have done to us so far greatly exceeds all the damage done by enemies we fought in all of our wars since 1783.

Alex said...

If single-payer is so fucking wonderful let the Democrats in the Senate put it up for a up/down vote NOW.

Alex said...

tradguy - even worse then FDR with his "New Deal" and court-packing schemes?

Just Lurking said...

So, whatever Obama's plan is for a loss, it's probably a bad plan. Just like his plan to get the Olympics in Chicago. Just like his plan to hug it all out with various countries. Just like his his plan to tame the recession and just like all of his plans. The extent of any of Obama's plans really, truly seems to be, "I'll show up and it'll work out because I am Obama."

I agree. This administration, and the Dem. political class, are always surprised when their policies "unexpectedly" fail to work out as they wanted. They foolishly believe their own hype. They really think that Obama is the "only adult in the room"; even in the face of failure after failure.

Being a Democrat political pundit today means being a shallow thinker who succumbs to self delusions- especially the one that says "we are smarter than everyone else". Not a winning position in the long run. Especially because outside of their beholden base, people are not buying their excuses and propaganda.

Joe said...

I suspect the SG is trying to defend something he personally finds indefensible. I've noticed for quite a while that the defenders of ObamaCare rarely even try to make a constitutional argument--their entire argument usually boils down to "health care is needed so this law is needed [therefore the constitution is irrelevant.]"

Alex said...

Rush had a really good show today, he really eviscerated the liberals big time. Heck it seems even their boycott is losing steam.

GO RUSH!
MEGA-DITTOS!!!!

Alex said...

I suspect the SG is trying to defend something he personally finds indefensible. I've noticed for quite a while that the defenders of ObamaCare rarely even try to make a constitutional argument--their entire argument usually boils down to "health care is needed so this law is needed [therefore the constitution is irrelevant.]"

Kennedy is a poll-reader and he can see that there is no support for ObamaCare and will rule for overturning the whole thing. Believe me, I wish we had Bork instead of him.

Amartel said...

"The extent of any of Obama's plans really, truly seems to be, 'I'll show up and it'll work out because I am Obama.'"

"far from being informed, thoughtful and progressive, is shallow, platitudinous, and wholly incoherent."

And yet people keep insisting that he's "obviously smart."
Sure, the manboy in the bubble could have a high IQ but where's the evidence for that? Grades? Scores? Credible self-made achievements? Nada. Also, a smart man would have gotten those bootheels wandering out of the bubble a long time ago, if only out of curiosity, Tour De Lesser Mortals or something like that, the prince viewing the realm.

BarrySanders20 said...

It was made all the worse in comparison to Clement, who I believe is the finest appellate advocate in my lifetime.

Hagar said...

An unabridged dictionary of the American Language runs to about 2,200 pages, and is more easily read than this bill, which includes a lot of language like referring to an existing statute and stating that the third sentence of paragraph 3,c.1 a shall be deleted and substitute therefore the following ...

No one is ever going to read this entire bill, and we will never know what all is in it, even if SCOTUS upholds it, and it remains on the books forever.

Quayle said...

t was made all the worse in comparison to Clement, who I believe is the finest appellate advocate in my lifetime.

Yeah. I was also gonna vote for Rex Lee.

T J Sawyer said...

Wow. That was far more painful to listen to than just hear described by Toobin and others.

Can the administration request a do-over?

PatCA said...

Today the WH is rebranding the individual mandate as the personal responsibility clause. :) (Drudge) I'd call it a man-caused disaster!

Yeah, sounds like allergies. You don't even know you're sick until you try to talk, and then the voie goes in and out.

Tim said...

"What is serious is that Obama has a plan for how he will use a loss, and there are some excellent applications."

I am probably in a minority of those who voted against Obama, and will do so again, but if I had the choice between Obama 2.0 or Obamacare, I would take Obama 2.0.

30yearProf said...

He's throwing the case.

A loss will greatly benefit Obama in the November election. After that, as he told the Russians, he'll be free to do whatever he wants (through Executive Orders and Agency policies).

Q said...

A loss will greatly benefit Obama in the November election.


This reminds of the "Real Conservatives" who argue that it would be best if Obama wins in November, in a "we have to destroy America in order to save it" sense.

You win by winning. Anyone who says otherwise is stupid or dishonest.

cubanbob said...

PatCA said...
Today the WH is rebranding the individual mandate as the personal responsibility clause. :) (Drudge) I'd call it a man-caused disaster!




That is too funny! If the court buys that argument then imagine what could be done with that legal argument with respects to all social spending.

ElPresidenteCastro said...

It is farcical to believe that a few coughs or a wavering voice will have any impact on the Justices. Remember that the audience is not the masses (and law professors) listening in on the internet. Millions of dollars have been spent to hone the arguments for 9 justices. In fact the audience is 2 maybe 3 of the justices. Justices Roberts and Kennedy were the focus of every word that was said. Maybe a bit of time was spent on Scalia hoping that his deference to the Commerce Clause would swing him. Even the comments and questions by the pre-committed justices were aimed toward swaying Roberts and Kennedy. To think that either of them would be swayed by a cough, sniffle or stumbled word is ridiculous. Toobin is a well known idiot and his concentration on personality and presentation is a joke. Even the useful idiots at the New York Times aren't talking about the presentation.

garage mahal said...

You win by winning. Anyone who says otherwise is stupid or dishonest.

Not by me. The mandate is a Heritage/Republican idea. Time for it die a quick death before liberals get tagged with this stupid plan that forces you to buy private insurance.

Peano said...
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AllieOop said...

I think that many here would be surprised at how many liberals disagreed with the mandate. Who wants the insurance companies to be given this gift? I think that when this mandate is knocked down, it will open the door for single payer. Be careful for what you wish.....

Dust Bunny Queen said...

Who wants the insurance companies to be given this gift?

What gift.

The insurance companies were being told that they must only have certain types of polices. Told that they have to include all kinds of things that make coverage more expensive for the insured like maternity (whether you want or need it or not) and offer the same coverage for everyone.

Very expensive for the insurance companies because they would have to pay out many many more claims than if people were able to have high deductible or catastrophic policies which cost the companies much less.

The insurance companies were told that they MUST take uninsurable people. That they cannot charge more to insure those that are unhealthy and who would be sure to have high claims instances.

BOTH of those mandates are losers for the insurance companies. They create an Adverse Selection in the pools by allowing the uninsured. The also create a Moral Hazard in that people who KNOW that they are going to be sick or make a lot of claims will flock to the companies, while the young and the healthy will not buy insurance.

Lose lose for the insurance companies.

Not a GIFT at all. It is a sure way to drive the companies out of business.

Ralph L said...

the Obama aide memoirs to come out, which I predict will paint a picture of a tone-deaf man with no concept of what regular people think or feel or believe
Do you think anyone on his staff is both honest and brave enough to do that? I think it might sell better than hagiagraphy, but to a totally different audience.

I didn't watch the video--does Althouse flap her fingers in time with the speakers? Justices with her left hand, lawyers with her right?

AllieOop said...

DBQ, I am reffering to the individual mandate. No one should be forced to buy a product that they don't want. The insurance companies LOVED the individual mandate, wonder why?

Dust Bunny Queen said...

The insurance companies LOVED the individual mandate, wonder why?

No they didn't LOVE the mandate.

I am an insurance agent (still even though retired from financial advisory investments). All of the emails from the various companies that I am affiliated with are not in support of the "individual mandate" ESPECIALLY, when also being forced to accept all comers at prices determined by the government and being forced to cover in their mandatory policies things that would be costly to the insurance companies.

The individual mandate WITH the ability to score and charge appropriately for poor health, might have been acceptable.

However, the plan as written was a ticking time bomb for the insurance companies.

High costs in claims. Low premiums because no underwriting. Adverse Selection and Moral Hazard two items guaranteed to kill the company.

Of course.....that WAS Obama's intention.

drozz said...

It's already known as obamacare. Not a single republican voted for it. Even if the pubs came up with the mandate, which is a stretch, the debs put the language in and passed it without a single republic vote.

The liberals, and especially obama, own this leviathan . And if the mandate falls they will reap it.

drozz said...

Um sorry this comment got transferred here from another thread. Please move on.

David said...

What Richard Dolan said (better than I could have.)

Don't Tread 2012 said...

Selling a bag of feces to people that have been repeatedly shat upon by their government is no easy task.

The coughing, the repeating, all signs of someone that cannot hide discomfort.

Rather fitting, no?

Patrick said...

Reminds me of my first jury trial. I had a coughing fit during jury instructions. Ughh. Nothing I could do.

leslyn said...

Jeffrey Toobin?? Way down my list a sa Supreme Court analyst.

Simon said...

It's not really Verrilli's fault. The court is insisting that he articulate a limiting principle. He just doesn't believe that there is one, but he can't say that, and he knows it; Drew Days ran into the same buzzsaw in Lopez, and we all know how that turned out. Go back and read the arguments in Lopez and Morrison again; this is exactly the same argument. The conservatives and Kennedy want a limiting principle because they can't believe Congress can do anything; the SG can't believe that it can't.

leslyn said...

Jeffrey Toobin?? Way down my list of Supreme Court analysts.

leslyn said...

Jeffrey Toobin?? Way down my list of Supreme Court analysts.

Simon said...

Listen, here's my devil's advocate argument about all this. No justice since Rehnquist has wanted to revisit the basic premise of the new deal revolution, which is essentially that Congress can do anything, but only four justices are willing to embrace that outcome, and so every time a case challenging congressional authority arrives, liberals can't believe it's serious (because they don't believe there are limits other than individual rights), and the conservative justices desperately search for a limiting principle that preserves the fiction that the new deal settlement doesn't make congress omnipotent (because they don't want to revisit the new deal settlement).

Now, I'm not sure that it's true that the new deal settlement essentially makes Congress omnipotent; certainly that is the proposition that Lopez denies. But in the absence of a limiting principle, it's hard to see how that isn't the upshot, so we are backed into the corner of accepting one of three outcomes: Accept Congressional omnipotence, impose (sometimes slightly artificial) limiting principles to reign in that power, or overrule Wickard et al.

Everything in Verilli wants to scream "listen, you fucking idiots, Congress can do anything it wants. Anything. Anything at all. Unless you're willing to sack up and overrule Wickard, which we all know you won't, it's a done deal, so stop wasting my time and yours with this cooked up Randy Barnett crap, stop looking for a contrived limiting principle that preserves limits on Congressional power, stop worrying, and learn to love Congressional omnipotence." That's what Verilli wants to say, because that's what he believes. That's what liberals really believe. That's why they just can't believe that this case is really happening (they couldn't believe Lopez, either), it's why the pundit class is absolutely stunned, and is now reacting with such stunned horror to three days of arguments that seem to imply that Obamacare might have fewer than five votes. And the reason Verilli's having such difficulty at the podium, to the point that his body is physically rebelling, is because he's being asked to oppose a proposition that must seem to him as natural as "breathing is good" or "water is wet." He doesn't believe a word he's saying, and he can barely bring himself to condescend to try. It's not his fault. Any good lawyer can argue that the sky isn't blue. But even the best lawyer can't argue that water isn't wet.

leslyn said...

@Simon: Interesting and fun to read, but how do you know what's in Verilli's private thoughts? Just an observation.

And, of course any lawyer can argue that "water is not wet." They have to do the equivalent all the time. Especially in criminal cases (which I recognize this is not, but still...just another observation.)

Simon said...

Leslyn, I am, of course, fictionalizing his thoughts, but lookit: Verrilli is a very smart, very well-educated liberal lawyer. He attended Colmbia, which is a great liberal school, and clerked for Bill Brennan, who was a great liberal jsutice. He is a legal liberal. And legal liberals, to a man, don't believe that ther are serious restraints on Congressional power except individual rights. Since the new deal, liberals have fought for the broadest conceivable interpretation of the affirmative scope of congressional power and the narrowest possible interpretation of strucutal limits on that power. That's why legal liberals have spent decades trying to dismantle precisely the kind of restraints that Don stood up there yesterday and insisted could serve as a limiting principle. It has been utterly comical to hear—inside the courtroom and beyond it—cases like Lopez, New York v. US, Printz, and the sovereign immunity cases brandished as limiting principles, as answers to the question "what can't Congress do," when everyone in the room knows full well that liberal lawyers fought those rulings tooth and nail, and the liberal justices would overrule them tomorrow given the votes to do so.

Lastly, lawyers never argue that water isn't wet; they often argue that the sky isn't blue. You can split hairs about whether the seemingly capacious term "blue" is actually a more restrictive term of art; you can note that whether the sky is any shade that would be recognized as blue depends entirely on the time of day, and so forth. "Mr. Chief Justice, and may it please the court: When Congress declared that x was illegal for as long as the sky is blue, it was being idiomatic and meant "unto the end of the world" / it was being literal and meant during the hours of the day between sunrise and nautical twilight."

leslyn said...

@Simon, for fun: For the premise that "Water is not wet."

News from the Water is NOT Wet File

"Water is not wet" (@alterion 1910)

See the Board of Education of Topeka, Kansas in Brown v. Board of Education of Topeka.

sonicfrog said...

"Pardon me, I'm sick... I need health care"

Hey, this certainly wouldn't be the first time something like this has been done. Without telling the occupants of the room, they apparently turned up the thermostat in congress to make the room hot while they were holding hearing on global warming in 1998.

furious_a said...

SG Verilli isn't a bad attorney -- he's just stuck defending a bad law with bad arguments.

As for the "good answer to a hostile question", one would expect the Admin's legal team to have anticipated the question and moot-courted responses to it. They *had* to know this was coming.