One of the more controversial (surprisingly) claims I made in Unprecedented was that Solicitor General Verrilli didn’t mess up. Well he did choke. He nearlty lost his voice after doing 6 moots in a week, so he tried to take a sip of water, and it went down the wrong pipe. And he did stumble through his answer to Justice Alito’s answer about the limiting principle. But the answer he gave in Court was almost verbatim what his argument was in his briefs. He stuck to his strategy (a strategy that did not work, as he didn’t get to five votes).
I’m glad to see that Justice Alito agrees. In remarks made at Duke Law School, the not-so-Junior Justice opines on the SG’s performance:
In the course of his wide-ranging conversation with Levi, Alito explained his opposition — one shared by his Supreme Court colleagues — to having oral arguments televised. He recalled the arguments made by U.S. Solicitor General Donald Verrilli Jr. in support of the Patient Protection and Affordable Care Act during the last term of the Court.
Calling Verrilli a very good and skillful advocate, Alito noted that the solicitor general frequently argues before the Court and made three arguments on “Obamacare” in a week.
“To prepare for one argument is exhausting. To do three is Herculean,” said Alito. “So the solicitor general got up to argue during one of these arguments — it was not the first — and he had a bad 30 seconds. He was having trouble swallowing — he sipped [water] the wrong way. The argument was not televised, however contrary to our normal practice, we released the audio of this that afternoon. So that afternoon, C-SPAN broadcast the audio, along with still photos of the participants.
“Well, he recovered, he got his voice back, and he made a very good argument. It was one that I happened not to agree with, but he did a very good job of arguing the position the government had taken, as you would expect. Within hours of that, a television ad had been produced saying that ‘There’s no good argument that can be made in support of the constitutionality of the Affordable Care Act and here’s the illustration — we have the solicitor general of the United States, and he’s at a loss for words in trying to support this position.’
“This is an illustration of the way oral arguments can be used if they are televised,” said Alito.