Wednesday, July 11, 2012

The only adult in the (Heritage Foundation) room

Perhaps Donald Verrilli did not have the smoothest delivery in the Court on March 27, when he defended the constitutionality of the individual mandate.  But in this Heritage Foundation panel discussion, as reported by Josh Gerstein, he seems on a different moral plane entirely from plaintiff's attorney Michael Carvin and libertarian U. of Chicago Professor Richard Epstein:

Verrilli declined to comment on leaks out of the court in recent weeks indicating that Chief Justice John Roberts originally voted to strike down the individual mandate in the health care law, but reversed course shortly before the final decision was announced.

"It would not be appropriate for me to comment on that sort of speculation," said the solicitor general."

Epstein blasted the leaks and argued that the prying media was responsible for the disclosures.

"I don’t like leaks coming out of the court," he said. "In the end, the leaks make the judges seem all too human...The effect on [the court's] overall performance and its prestige will have to be negative....I wish the journalists would back off that kind of stuff."

Carvin said the leaks suggest that Roberts fell victim to pressure from the White House and Democrats not to strike down the key part of the health care law. "It gives some credence to the fact that this kind of thing works," he said.
So Epstein thinks that the media should not pry into the internal deliberations of the Court, regardless of whether Court insiders are volunteering information (I could see excoriating the obviously self-interested leakers). And Carvin not only credits without qualification the report that Roberts switched his vote, but credits unfounded and ax-to-grind speculation as to Roberts' motives for allegedly doing so.  Only Verrilli credits all actors with good faith.  All actors, including one who hit him hard:
If anyone took it on the chin during the discussion, it was New Yorker magazine and CNN legal analysy Jeffrey Toobin who called Verrilli's oral arguments a "train wreck" for the Obama administration.

Epstein called Toobin "slightly crazed" for having predicted that a decision upholding the health care law was "a lock."

After the arguments, Toobin "was kind of embarrassed about his [prediction] so he takes it out on Don."

Verrilli looked bemused by the flagellation of Toobin, but didn't join in. He did say in general terms that such critiques come with the territory.

"We have a First Amendment...One of its primary purposes is to protect criticism of government officials," Verrilli said. "I ought to be subject to criticism like any other government official with a weighty responsibility—and I guess I was. And I'm okay with that."
I'd like to think that at the end of this long and bitter legal battle, there was a meeting of those minds that best respected the process. That's probably a wishful extrapolation -- though I would cite again this footnote to a post in defense of Verrilli, put up two hours before the decision came down:
UPDATE, 6/28, 8 a.m. ...Last night I flipped on the TV and stumbled on an audio recording, I guess on C-Span [of the 3/27 oral arguments over the mandate]. I listened for about 20-30 minutes, through the second half of Verrilli's pleading [mainly on the tax question, as it turned out]. He was excellent!  Calm, patient, understated conviction.  Maybe he stumbled at the start. But his "bad day" has been way overhyped.
 I will indulge my confirmation bias, in any case, to the extent of asserting that the best man won.

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