Verrilli, slapped silly, recovers willy-nilly

I read rather than listened to the Supreme Court pleadings on the individual mandate yesterday, so I missed all the cues of body language and tone. Maybe that's why  I think that Solicitor General Verrilli is getting something of a bad rap in the lethal post-mortems.  (I'll also cop to being biased in favor of those under attack.)

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 therefore took him a while to spit out the core points. But he did get them out. The fractured early focus was the basis of much criticism -- for example, Noah Feldman's: