SG Verrilli Vindicated - Again

Post update, July 3:

News reports and analysis continued to offer re-assessments of Solicator General Donald Verrilli's work on the health care case, along with some interesting post-decision tidbits. The Times reported that President Obama's first phone call after learning the Supreme Court's decision was to thank Verrilli, described by those who know him "as humble but intensely competitive."

The White House also released a photo of Obama making that call.

Initial post from June 28:

NBC’s David Gregory reported on air today that the White House’s initial reaction to the Supreme Court ruling included the sentiment that Solicitor General Donald Verrilli’s work on the historic case was “vindicated.” The Lawdragon 500 member, who was a veteran appellate star at Jenner & Block before taking on the SG post, was heavily criticized for his performance during the turbulent oral arguments, when it was widely accepted that he was out-argued by fellow Lawdragon 500 member Paul Clement.

As Nate Silver noted yesterday in his analysis of the predictions, “conventional wisdom held that the Supreme Court was more likely than not to uphold the mandate” before oral arguments; the tide changed drastically during and after arguments, symbolized by Jeffrey Toobin’s “track wreck” assessment. Today, it turns out that Chief Justice John Roberts in his opinion relied on Verrilli’s back-up argument that the mandate operated as a tax instead of being justified by Commerce Clause powers.

Of course, many practicing lawyers and other close observers of the court were far less critical. As James Feldman – a lawyer who has argued before the court 46 times – wrote in his defense of Verrilli in the Washington Post: “Those who understand the challenges of Supreme Court argument — people who have argued before the court — have not criticized Verrilli’s performance.” Feldman noted that, during one key session, Verrilli was interrupted 103 times by the justices, much more than Clement, who got to speak about twice as long as Verrilli before an interruption. His conclusion: “The only good measures of a Supreme Court advocate are whether he has made the best arguments in favor of his position and whether the justices understand those arguments. In this respect, Verrilli succeeded.”

In a Nieman Journalism Lab discussion in April, Lyle Denniston, the dean of High Court reporters, said that Supreme Court coverage has changed like other news coverage with the “the instantaneous spread of conventional wisdom.” The idea that Verrilli performed poorly “went viral instantly, and is now accepted wisdom across the country that Verrilli really blew it. On closer examination, that’s not true.”

Andrew Pincus, a veteran appellate lawyer, wrote in SCOTUSblog that Verrilli suffered some of the same unfair criticism over the Arizona vs. U.S. immigration case, another big victory for his office that followed serious attacks on his performance at arguments. He writes that “judging an oral argument’s effectiveness is a treacherous business.”