Wednesday, June 27, 2012

"Verrilli, slapped silly, recovers willy-nilly" revisited

On March 28, I wrote in defense of Solicitor General Donald Verrilli's performance in oral argument over the constitutionality of the individual mandate:
To a degree, I suspect that critics are projecting their own discomfort and shock at the apparent intense hostility to the mandate expressed by Scalia, Roberts and Alito at the outset onto Verrilli, concluding that he buckled under the pressure of hostile questioning. Maybe he did look and sound ill at ease -- the play's the thing, not the script. But if  he did not answer this point or that point at the particular moment when one critic or another thought appropriate, it was in large part because he was repeatedly interrupted.  Ironically, some of the interventions by Ginsburg and Breyer may have diverted him an early answer to the core question: what was his "limiting principle, " a line the federal federal government could not cross while exercising its power to regulate interstate commerce.

By my count, Verrilli was interrupted 44 times in 50 pages of testimony.  Plaintiff's counsel Paul Clement, who was more fluent, was interrupted just 12 times in 24 pages. Clement's co-counsel Michael Carvin was interrupted at a rate similar to Verrilli -- 25 times in 27 pages. But the intensity in the two halves of the proceeding was reversed:  the liberal justices got in the groove of defending the mandate near the end of the proceeding, while Verrilli was buzz-sawed most intensely at the outset -- 16 times in the 15 pages following his opening statement. 
It seems I undercounted the interruptions when picking over the transcript. This afternoon, former Office of Legal Counsel head Walter Dellinger argues in Slate:

Performance criticism of the arguments in the health care case should be directed at some of the justices who made a mockery of what could have been a good civics lesson. As Adam Liptak notes in the New York Times, Verrilli was “interrupted mercilessly.” A careful study of the argument shows that Verrilli “was cut off 180 times or, on average, every 22 seconds. He was interrupted after speaking for 10 or fewer seconds more than 40 percent of the time.” Justice Scalia turned into a heckler. He interrupted Verrilli 26 times, his opponent Paul Clement only twice. No wonder the argument sounded rough at times. The key points, however, were made and understood.
On the substance, on 3/28 I traced out Verrilli's articulation of a limiting principle (or two) -- fractured, again, by interruptions, but ultimately echoing his briefs -- and concluded:
Perhaps Verrilli projected some weakness or anxiety or allowed his focus to be fractured.  Perhaps he could use a bit of the candidate's trick of refocusing the question he wants to address, or returning to an earlier question.  But noting that he did, ultimately, furnish a "limiting principle" should constitute a limiting principle for the criticism.
In a later post, I noted the inevitably more coherent layout of the same limiting principles in Verrilli's briefs.  Here's Dellinger again, today:
Any serious reading of the briefs filed by the United States or the transcript of oral argument shows Solicitor General Donald Verrilli effectively established that the “mandate” was an essential part of regulating the interstate market in health care and health insurance. Early in the argument and often during its course, he put forth a set of limiting principles, noting repeatedly that the law regulates the payment method for services that people have no choice but to use. He wove the mandate into the fabric of reforms of the insurance market that no one disputes are within Congress’ constitutional competence.
UPDATE, 6/28, 8 a.m. While I have picked over the 3/27 transcript several times, my perception was affected, as the 3/28 post shows, by the widespread panning of Verrilli's delivery.  Last night I flipped on the TV and stumbled on an audio recording, I guess on C-Span. I listened for about 20-30 minutes, through the second half of Verrilli's pleading.  He was excellent!  Calm, patient, understated conviction.  Maybe he stumbled at the start. But his "bad day" has been way overhyped.

UPDATE, 6/28, 11:30 a.m.:  I wish I'd added that much of the oral argument segment I listened to last night concerned the argument that the mandate is Constitutional under Congress's taxing power, and Verrilli was quite cogent there.  That was the government's Argument C, but it was determinative.

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