Finally someone comes to SG Verrilli’s Defense

May 4th, 2012

Jeremy Learning from ACS shows some love for SG:

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

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.”

Well he quotes two ACS lawyers, but close enough.