Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.
I listened to the oral argument. Verrilli didn’t do that bad. Everyone these days is used to seeing lawyers in movies and on TV shows have these amazing closing arguments. Everyone expects you to be MatthewMcConaughey, in A Time to Kill.
I hate to kill your buzz, boys and girls, but the actual legal world isn’t like the movies. It’s kind of dry, it’s not dramatic, and it’s usually conducted in a run-down government building. Judges ask tough questions, and sometimes there isn’t a really good answer that it both profound and witty. Sometimes even the best lawyers lose their train of thought. Accordingly, everyone needs to kind of chill out about the "style-points" of the whole thing.
Also, any lawyer who does a fair amount of appellate work will tell you that oral argument doesn’t really win or lose the case. Sure, if you make the best oral argument in the history of the world (or the worst) it might influence a vote. However, the reality is that the Judges/Justices at the appellate/supreme level have already read your written briefs, thought about the question presented, had their law clerks research the issue, discussed it, and have probably formed their own opinion already.
Here’s my analogy for all you non-lawyers: An appellate case is like building a wooden fence. Your written work (the briefs), and the substantive law are the wood and the nails. You put the fence together with the wood and the nails. You try to make sure there aren’t any gaps in the fence, that each board is straight, and you nail it together tightly. Oral argument is deciding what color you’re going to paint the fence. If you accidentally spill all the paint, you still have a fence – it’s just not as pretty as you would like it to be.
Consequently, all this wailing and gnashing of teeth about how “bad” the solicitor general sounded during oral arguments is fluff and it's nonsense. However, the news media has to say something, so this is what they’ve decided to fixate on.
You don’t have to do any deep thinking about the merits of the law if your big takeaway is: That guy sounded like an idiot. But we all know that the news folks aren’t in the business of serious analysis. That would be too hard, bro.
They don’t want to talk about why the fence might have a bad foundation, the history of fence building, how the fence could be flawed, or what other kinds of fences built like this would mean for us. They just want to focus on: Wow, that’s an ugly looking fence.
Another possible angle is that all the defenders of the health-care law and the media (but I repeat myself) are looking for a potential scapegoat. If SCOTUS kills the law, the defenders can then point to Verrilli and say “Hey, the law is constitutional, we just had a moron argue it.”
In fact, if SCOTUS kills the law, I personally guarantee you that some news-person will put that theory out there. They’ll have no problem throwing him under the bus to preserve the idea that the law is valid.
The News: If you’re looking for substantive analysis – you’re looking in the wrong place.