Is it Time to Fire Obama’s Top Lawyer?


Given Donald Verrilli Jr.’s poor showing in two consecutive, landmark cases is it time for Obama to let him go?

For the second time in two months Donald Verrilli Jr. delivered a dismal performance in front of the Supreme Court. One would think after ineffective defense of the Affordable Care Act the President would reconsider allowing him back onto the front lines. Are some things simply too important to leave up to second chances?

Throughout the health care reform’s oral arguments and to the dismay of many, Mr. Verrilli  essentially became the conservative justices’ whipping boy and the liberal justices’ insecure student in desperate need of prodding to strengthen his case.  Hammered by justices’ hypotheticals attempting to compare the unrelated markets for broccoli and cell phones to those for health insurance, Verrilli was ill-prepared to deliver the logical rebuttals required for an effective defense of the individual mandate. Sitting by stunned, one could imagine onlookers screaming obvious replies to counter such comparisons.

     Verrilli’s performance reflects poorly on someone of his background and experience. Prior to his appointment to the Solicitor General post, he spent 25 years in private practice in which he participated in over 100 Supreme Court cases and directly argued twelve. Since his appointment Verrilli has represented the administration in 5 Supreme Court cases. Remaining calm under pressure was emblematic of his reputation of which colleagues described how his voice would drop in tenor and resonate through the chambers should he find himself backed into a corner.

     With the experience and reputation of someone such as Mr. Verrilli’s it is not inconceivable to think he could have predicted the line of questioning put forth by the conservative justices given their previous positions on similar issues. The long running, hypothetical broccoli argument raised by Scalia was presented during the bill’s low court cases. It was irresponsible of Verrilli not to focus his efforts on discrediting that question right from the start. Instead it was used eight times throughout the two hour proceedings.

      During his latest appearance in front of the Court Mr. Verrilli defended the federal government’s suit against the State of Arizona and its controversial immigration law.  The focus of which centered on the provision requiring state and local police to check immigration status of individuals they detain for any number of reasons. Verrilli took the stance that “aggressive enforcement” could strain relations with Mexico. Both liberal and conservative justices alike took issue with this line of reasoning. Justice Sotomayor stated his arguments were  “not selling very well.“. Later Justice Scalia went so far as to say a sovereign state has the right to “defend its borders” and arrest those who are there illegally. True, but a sovereign state Arizona is not. By definition a sovereign state is, “a state which administers its own government, and is not dependent upon, or subject to, another power”. While this does describe the United States of America, it does not apply to Arizona, a state within a nation governed by a central government whose laws it is indeed subject to.  Mr. Verrilli could have taken this opportunity to use Justice Scalia’s comment to further make the case that immigration law is under federal government oversight, not the states.

      While the justices’ indifference to police officers checking immigration status during routine stops may appear benign, the disconcerting issue is the precedent it sets. This is a case of a state creating law that is a federal government responsibility. Subsequent civil suits meant to ascertain the potential for racial profiling may carry more weight with the justices and present avenues for this provision’s elimination. Perhaps someone other than the current Solicitor General will prove more capable of arguing this issue in front of the Robert’s Court. Until then is it not prudent for the Obama Administration to reassess the performance of its top lawyer prior to sending him out to argue a third precedent setting, potentially landmark case before the highest court in the land??

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5 Comments to “Is it Time to Fire Obama’s Top Lawyer?”

  1. Yup. It’s time. I listened to the Obamacare oral arguments in real time and he was cringe-inducing. Not just presentation, but on the law. Terrible.

  2. I completely disagree. Looking at oral arguments made over the years in the courts, and how the court rules, there appears to be little impact on the way a lawyer talks to the Justices, and how their opinions are shaped. The Justices appear to rely more on the presented case documents and legal justifications, while oral arguments are more of a Q&A session between the two sides to frame the debate.

    Listening to the oral arguments over Citizens United, it was clear the court would maintain the law… until they rules the opposite way.

    Oral arguments in Gore v. Bush also appeared to favor Gore, yet Bush won the Supreme Court.

    People put too much into the oral arguments. Far more depends on what is contained in the evidence presented before oral arguments even begin.

    This is a very similar sentiment to that of many long-time followers of the Supreme Court, such as SCOTUSBlog.

    • Annabel, I quite agree with you as to the limited impact of oral arguments on the Court. In fact, I’m sure it’s more a matter of tradition and courtesy and allowing the parties their “day in court”. But I would absolutely never rule out the potential for such an argument to influence the outcome. Briefs are where the details are, but human dynamics always come into play and in that arena, I thought the Solicitor General blew the opportulnity.

  3. Yep … time to go as I was thinking the same thing when hearing the comments at the second hearing. He probably has a good legal mind, but make someone else the front person!

  4. I couldn’t really speak to how well Verrilli knows the law, or how well he utilizes that knowledge during his appearances. I just can’t say that he did anything that made me sit up and take notice of his words, in a good way. No real force or conviction in how he presented himself. Again, I’m not an educated critic of this sort of thing, but it definitely seemed a bit anemic to me.

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