While we still don’t know the outcome of the Obamacare case, that hasn’t stopped some on the left from piling on Solicitor General Donald Verrilli for allegedly “choking” during oral arguments. While I haven’t argued in front of the Supreme Court, I’ve had more than my share of state and federal appellate arguments, and these armchair quarterbacks are overlooking a few factors.
First, it’s tough for any advocate to compare well to Paul Clement. Virtually any fair-minded liberal or conservative can tell you that Clement is just about the best in the business — one of the great oral advocates of our generation. This was his Superbowl, and he delivered a performance about as “clutch” as anyone can deliver.
Second — and more importantly — it’s tough for anyone to perform brilliantly when your argument is weak on the merits. Listening to NPR these last couple days, I was amused as various commentators suggested General Verrilli should have tried various alternative arguments — arguments that were not only unsupported by precedent but would have collapsed under the slightest level of scrutiny from Justice Kennedy or Justice Scalia. It turns out that the argument for Obamacare rests on a functionally unlimited view of federal power — that the Commerce Clause, Necessary and Proper Clause, and New Deal precedent have essentially combined to create a form of de facto police power for the federal government. But if you instead place federal power within the context of enumerated powers, then Verrilli’s argument becomes exponentially more difficult.
Solicitor General Verrilli struggled not because he “choked” — he did reasonably well for the case he had — but because several members of the Court asked him to justify the individual mandate from within the framework of enumerated powers. As with any case, so much depends on framing. And the more this case was framed as it should be — as a battle over the text and meaning of the Constitution itself — the greater the solicitor general’s challenge.
We’ll know within a few months if this framing holds and we do in fact maintain a federal government of enumerated powers. In the meantime, the Left shouldn’t be permitted to misdirect from the fundamental weakness of its argument by throwing its advocate under the bus.