“Everyone in the entire Supreme Court bar has come to [the Solicitor’s General] defense”

May 7th, 2012

It seems Liptak surveyed a bunch of SCOTUS litigators:

A survey of Mr. Verrilli’s peers across the political spectrum confirmed her assessment. These lawyers had varying views of the health care law but agreed, as Miguel Estrada, a prominent conservative lawyer, put it, that the criticism of Mr. Verrilli was “uninformed and unjustified.”

Through a spokeswoman, Mr. Verrilli declined to comment.

If there was a flaw in Mr. Verrilli’s presentation, said Theodore B. Olson, who was solicitor general under President George W. Bush, it was the one of substance rather than style.

“It always looks bad when the justices aren’t buying what you’re selling,” Mr. Olson said. “Don had very, very difficult cases. That hand was dealt before he got there.”

Well, why wouldn’t they. It is a very cloistered club. I suppose this harkens back to Goldstein’s outrage at the RNC ad which doctored Verrilli’s oral argument.

Members outside that club weren’t so swooning.

“The solicitor general’s performance in the health care case was totally disappointing,” said Barry Friedman, a law professor at New York University who filed a brief urging the justices to uphold the law. “His answers were wholly inadequate.”

“You really needed gravitas,” Professor Friedman said. “But what he conveyed to the court was that the administration was uncomfortable with its own position.”

And this is rich–Verrilli rambled on purpose!

Mr. Verrilli gave a rambling answer, for instance, to a request from Justice Samuel A. Alito Jr. that he describe the limits of Congressional power “as succinctly as you possibly can.”

But Ms. Blatt said that response could well have been calculated. “It may be,” she said, “that there was a strategic decision not to give a crisp and clear answer.”

Katyal did much better at the 11th Circuit. Same policy constraints applied (though perhaps on a much less grand scale).