Has there ever been this much unpopular press about a sitting Solicitor General due to his poor performance?
A respected, reserved corporate attorney, Verrilli also had a passion for defending inmates on death row. But he had not handled high-stakes, politically charged cases in the high court.
He seemed repeatedly caught off guard when his liberal arguments were met with skepticism and even scorn from the justices, a majority of whom lean to the right. It made for some awkward encounters. The more Verrilli spoke, the more the conservatives sounded persuaded to vote the other way.
His worst moment came as he rose to defend President Obama’s healthcare law and its requirement that all Americans have health insurance or pay a tax penalty. His voice sounding weak, Verrilli paused after his second sentence and coughed.
“He was hoarse. He took a sip of water, and it went down his windpipe. He couldn’t get out a sound for a few seconds. You can imagine what that felt like,” said Washington attorney Paul Smith, a friend and former law partner of Verrilli’s.
Within minutes, the solicitor general had recovered and engaged in sharp exchanges with the conservative justices. But the painful pause became a metaphor for an argument that went badly for the government. Bloggers wrote that Verrilli “choked” or “blew” the argument.
The article notes that Katyal did well, and hits him also:
Last year, their prospects looked good. Acting Solicitor Gen. Neal Katyal defended the law before U.S. appeals courts in Ohio, Virginia and Georgia. He won twice and lost once. But Katyal had put off government colleagues who saw him as arrogant, and the president tapped Verrilli, a deputy White House counsel, to take his post.
The new solicitor general arrived facing a momentous, complex challenge to a 2,700-page healthcare law, and with no time for practice runs before hostile judges. And he proved to be a bit tone-deaf with the conservatives.
And the article attacks other positions Verrilli took, including his bizarre position in Hossana-Tabor:
Verrilli got off on the wrong note last summer when he sent an emergency appeal to the justices asking them to stop Texas from executing a rapist and murderer who was a Mexican national. Carrying out the sentence could cause “serious repercussions” and upset Mexican officials, he said. Deferring to Texas over Mexico, the court’s conservative bloc rejected the appeal by a 5-4 vote.
In a case involving church schools, the solicitor general took the side of a religious school teacher fired over a disability claim and argued the law has no “ministerial exception” that permits church leaders to decide who will teach the faith. The administration lost 9 to 0, and the chief justice described its position as “extreme.”
Late last month, Verrilli returned to the theme of avoiding offense to Mexico in the final argument of the term. He urged the court to block Arizona from enforcing its stop-and-question law that targets illegal immigrants. Arresting these immigrants would “raise a significant foreign relations” problem with Mexico, Verrilli said.
That claim drew a sharp objection. “So we have to enforce our laws in a manner that will please Mexico?” Justice Antonin Scalia said.
Worse, Verrilli’s argument fell flat with liberal justices. It’s “not selling well with us. Why don’t you try to come up with something else?” said Justice Sonia Sotomayor, an Obama appointee. Her comment echoed in legal circles for days. Could the administration possibly lose the first Latino justice in an immigration case?
I wonder if Verrilli will resign if the Court strikes down the mandate (or even if it is upheld).