Bloomberg News

Health Ruling Vindicates Verrilli After Arguments Mocked

June 29, 2012

For U.S. Solicitor General Donald Verrilli, the Supreme Court’s decision to uphold the Obama administration’s health-care overhaul meant vindication.

During oral arguments in March, Verrilli faced questions from four of the court’s Republican appointees, and afterward was mocked in campaign ads and by television talk-show hosts, raising expectations that President Barack Obama’s signature domestic-policy achievement would be thrown out.

Yesterday, after the court issued its 5-4 ruling affirming the core of the 2010 law, Verrilli was the first person Obama called. The health-care decision came three days after the high court largely sided with Verrilli and the administration by scaling back an Arizona law targeting illegal immigrants.

“Don is one of the great Supreme Court and appellate advocates of our generation and he knew that,” said David Ogden, a former deputy attorney general who is now a partner at WilmerHale in Washington. “He knew he did a job that was good enough to win the case.”

Verrilli, 55, endured some suspenseful moments in the courtroom yesterday. While the decision was distributed outside to media and other watchers, people inside -- including Verrilli -- listened as Chief Justice John Roberts announced the ruling. With Verrilli sitting several feet away, Roberts started by saying the requirement at the core of the law -- that individuals get insurance or pay a penalty -- couldn’t be upheld under Congress’ power to regulate interstate commerce.

Champagne Celebration

For about ten minutes, the measure’s future looked in doubt. Then, Roberts switched gears, saying that the majority had concluded Congress had the authority to impose the insurance requirement -- under its power to levy taxes, salvaging the health-care overhaul’s constitutionality.

Verrilli and his colleagues celebrated afterward with champagne back at his office. The moment was a far cry from late March when commentators highlighted the harsh questioning he endured from the justices, including Roberts, Antonin Scalia and Anthony Kennedy, as signs the law would be struck down.

Following the argument, Verrilli was mocked and criticized by people ranging from Comedy Central’s “The Daily Show” host Jon Stewart to CNN legal commentator Jeffrey Toobin. The Republican Party followed with an Internet advertisement that altered Verrilli’s presentation to show him struggling for words and twice stopping to drink water.

“It was sufficiently sustained and nasty that it would affect anybody,” said Paul Smith, Verrilli’s former partner at Jenner & Block. “But Don is a grown-up and knows what a tough town it can be.”

‘Break Badly’

Verrilli, a Columbia Law School graduate and former law clerk to Justice William Brennan, returned to work after the health-care arguments and focused on the immigration case which was still pending. Privately, he made light of the criticism, and he hinted at it publicly during a speech to Columbia law graduates last month.

“There will be times when things break badly for you,” he told them. “You don’t live up to the expectations you have for yourself and others have for you. It happens to all of us. And when it happens it can be tough, believe me.”

The oral arguments represented only a portion of what the court considered in reviewing the Obama health-care law, with the administration’s case also made through court filings.

Well Prepared

Verrilli was well prepared and should not be criticized for presentation, according to Jack Balkin, a law professor at Yale University. “People tend to approach these arguments like it is Dancing with the Stars,” he said. “They are not looking at the substance and strategy.”

In a late filing to the court, Justice Department lawyers included more discussion of the U.S.’s tax power, while Verrilli also tailored parts of his argument toward Roberts and Kennedy in an effort to have one of them join the four more left-leaning justices to form a majority, Balkin said.

Nominated in January 2011 to replace Elena Kagan as Solicitor General, Verrilli had worked at Jenner & Block in Washington representing the music and movie industries, winning a 2005 Supreme Court ruling that lets them press copyright suits against Internet file-sharing networks.

Verrilli also argued for limits on the death penalty, as in 1998 when he unsuccessfully urged the Supreme Court to bar the three-drug method of lethal injection used across the country.

The decision on tax power surprised Paul Clement, the former solicitor general who represented 26 states challenging Obama’s health care law. Arguments before the court focused more on the Commerce Clause, with taxing “not the focus,” he said in an interview with Bloomberg Television.

“There’s satisfaction in winning a big case, but more gratifying when people don’t expect you to win,” said Kannon Shanmugam, an attorney with Williams & Connolly in Washington who has argued 11 cases before the Supreme Court.

To contact the reporter on this story: William McQuillen in Washington at bmcquillen@bloomberg.net

To contact the editor responsible for this story: Jon Morgan at jmorgan97@bloomberg.net


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