What is more insulting to the Solicitor General?

April 2nd, 2012

The RNC distorting the audio of his (abysmal) oral argument to make (what I think) is an unintentionally effective point–the government could not articulate well what the limiting principle on their own argument is.

Or, several leading liberal scholars openly second-guessing Verrilli, and offering pieces offering “what the SG should have really did.”

Tom Goldstein is quite upset that the RNC put out this video:

I’ve been in practice for seventeen years, and the blog has existed for ten, and this is the single most classless and misleading thing I’ve ever seen related to the Court.  It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it.  I would be shocked if a serious conservative lawyer would stand by the ad.

This is politics. This case is political. The outcome of this case will affect the next election (either way). Is it wrong for a political party to take advantage of this?  I mean, after arguments, the White House put out a statement saying they approve of Verilli’s job. The SG is a political figure, who is confirmed by the Senate, even if he is a lawyer, and a member of the Supreme Court bar. Usually though, most people have no clue or care about the SG. Here it matters.

To keep it balanced, what flak has Paul Clement taken because of his decision to represent the House Republicans in the challenge to DOMA? I don’t recall a defense of this type, or any (my memory my fail me) from Goldstein. I suppose the attacks can be distinguished–those on Clement are substantive (he shouldn’t defend a cause). Those on Verilli are procedural (he couldn’t defend it).

But here is what I think is really quite insulting. Law Profs writing about what the SG should have done

Mind you, these posts are not coming from political hacks like those at the RNC (whose job is to make political hay out of the most minor insignificant flaps), but from prominent constitutional law professors.

Akhil Amar. Jeff Rosen. Jack Balkin. Neil Siegel. Etc.

How patronizing and humiliating must that be for the SG? Can you imagine what Verrilli must be thinking. All these Monday morning quarterbacks. If the SG was a head coach who blew a key game, he would be on the hot seat. I could imagine what the New York Post would have written in such a case–“Stumbled out of the Blocks.”

Now, the issue of *why* the SG did not have good answers prepared to these questions is perplexing. Perhaps the inability to answer the question is a testament to the fact that the challenger’s legal strategy. I mean Verrilli is a veteran SCOTUS advocate. He has probably had so many moots. He had every advantage in the world. So what happened?