For the second time in two months, Solicitor General Donald Verrilli is being blamed for blowing a case in front of the Supreme Court. Though the justices have yet to rule on anything, the country's major newspapers and TV networks have concluded that the court is aiming to uphold Arizona's tough immigration bill. That decision would be a major loss for the left and the blogosphere knows precisely who to blame: Donald Verrilli.
"Obama's Lawyer Chokes Again" reads the Drudge Report's banner. "Verrilli had a rough time today," reads Business Insider. "Verrilli, in fact, never quite got his point across," reads SCOTUS blog. "Supremes Seem Unimpressed with Obama Immigration Law Arguments," reads The American Spectator.
The editorializing fits comfortably within the narrative that President Obama's chief lawyer has been whiffing it in the biggest court cases in recent memory. To some extent, criticisms of his performance on health care made sense: As the audio transcripts make clear, Verrilli sounded nervous, had to take water breaks, and repeatedly stuttered and stammered. But delivery is just one, largely overrated aspect of arguing in front of the high court. And in today's case, Verrilli delivered his arguments without the previous hiccups. What's left is the disposition of the justices themselves, as The Washington Post's Ezra Klein wrote in March. And if the justices are in a pre-disposition to accept the direction of the argument from the other side, there's not much Verrilli can do.
In today's case, not only were the conservatives against him, but so was liberal justice Sonya Sotomayor. At one point, when Justice Antonin Scalia argued that Verrilli's point smacked of a racial profiling argument, something Verrilli pledged he would not argue, Sotomayor stepped in. "You can see it's not selling very well,” she said. “I’m terribly confused by your answer.” Chief Justice John Roberts and Justice Scalia were also hostile to Verrilli's remarks. “It seems to me the federal government just doesn’t want to know who’s here illegally,” said Roberts. It's a bit unfair to blame Verrilli for the way the justices already feel about the case.
Additionally, it's wrong to solely blame Verrilli for the way the case is framed. This was a point Newsweek's Einer Elhauge made well last time around and it's worth making again. "The solicitor general had a tough time defending the health-care law ... but the government didn't do him any favors in the months before the Supreme showdown," he wrote. In essence, Verrilli was limited by what the government would permit him to argue and what its going-in strategy was. According to Elhauge, the government let the health care law's challenger's frame the debate, as an unprecedented overreach of federal power, instead of opting for an alternative framework. "Had the government more squarely attacked the challengers' framing of the case months ago, it would have been much clearer to everyone why this case is not at all about a fundamental change in the relationship of individual to government," he wrote. So maybe spare some sympathy for Verrilli?