You know you’re in trouble when the White House has to issue a statement in your defense as a show of confidence. According to Politico’s Jonathan Allen, that is exactly what the White House has done for Solicitor General Donald Verrilli, who is getting bad reviews for his performance at the Supreme Court yesterday. Verilli started out weakly, with a bit of a coughing fit, and then did not do much better as the questions began. It seemed that a number of the liberal justices were feeding him lifelines, and trying to make his best arguments for him. I suppose that if a White House statement is a terrible sign for a Democratic Solicitor General, the only worse thing might be a defense on NRO, but here goes.
There is no doubt that Verilli did poorly in the Court yesterday, but his real problem was the problematic law he was being asked to defend. The government’s position that the mandate is a tax when convenient to them and not a tax when inconvenient does not stand up to scrutiny, and certainly not the heavy scrutiny of an argument before the Justices of the Supreme Court. On the mandate itself, it seemed as if the government could not articulate a limiting principle, other than this idea that health care is somehow unique.
I mentioned Verilli’s poor performance to Baltimore’s Tom Marr on an interview this morning and he said that “Edwin Bennett Williams himself could have come down from heaven to argue this case” and he would not have done much better. That Verilli did a poor job with the argument does not mean that there was a strong argument for his side to make.