Clement v Verrilli
So much praise has been heaped on Paul Clement, lawyer for the Obamacare opposition, that it made me wonder about him—just who he was and what he was doing before this particular case came his way.
Clement’s got a lengthy history of lawyering for causes (sometimes unpopular) mostly on the right, especially at the appelate level. And for those of you who stayed home in 2008 rather than vote for John McCain, please note that Clement might be on the Supreme Court right now rather than either Sotomayor or Kagan (pick one) if McCain had won in 2008.
Clement has been a clerk for Justice Scalia, a professor at Georgetown Law School, solicitor general under Bush II, and has “argued more cases before the Supreme Court since 2000 than any other lawyer” (count ’em, 53), including quite a few involving Bush’s war on terrorism.
Is it any wonder Clement did such a bang-up job for the plaintiffs in the HCR case?
Obamacare’s lawyer Donald Verrilli, who’s been widely excoriated for a very sub-par performance, isn’t even close to Clement in the amount of SCOTUS experience he’s had, although his record would be good compared to almost anyone else.
Pundits on the left were not at all pleased with Verrilli’s performance. Here, for example, is Adam Serwer in Mother Jones:
Justice Samuel Alito asked the same question later. “Could you just””before you move on, could you express your limiting principle as succinctly as you possibly can?” Verrilli turned to precedent again. “It’s very much like Wickard in that respect, it’s very much like Raich in that respect,” Verrilli said, pointing to two previous Supreme Court opinions liberals have held up to defend the individual mandate. Where the lawyers challenging the mandate invoked the Federalist Papers and the framers of the Constitution, Verrilli offered jargon and political talking points. If the law is upheld, it will be in spite of Verrilli’s performance, not because of it.
The months leading up to the arguments made it clear that the government would face this obvious question. The law’s defenders knew that they had to find a simple way of answering it so that its argument didn’t leave the federal government with unlimited power. That is, Obamacare defenders would have to explain to the justices why allowing the government to compel individuals to buy insurance did not mean that the government could make individuals buy anything””(say, broccoli or health club memberships, both of which Scalia mentioned). Verrilli was unable to do so concisely, leaving the Democratic appointees on the court to throw him lifelines, all of which a flailing Verrilli failed to grasp.
Note that Serwer does not mention what explanation would have sufficed—maybe because there isn’t one? And if Clement and company quoted the Federalist Papers and the Founding Fathers and the Verrilli et al didn’t, perhaps it was because there is nothing in the Federalist Papers that would have bolstered their case? Whatever the speculation has been on the reason for Verrilli’s extremely subpar performance, maybe—just maybe—a leading cause is that the case for the constitutionality of Obamacare is an especially difficult one to make.
So may people on the left are accustomed to thinking of the law and history as elastic—a penumbra can be found for anything they want to have happen, because their hearts are pure and their intentions are good—that we can hardly blame them for thinking it is Verrilli’s fault that he couldn’t pull a justification out of a Founding Father hat.
As Serwer points out, the liberal justices tried to help Verrilli out with some hints at arguments he might make, such as when Ginsburg said, “I thought what was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.” But it’s not exactly the Federalist Papers, is it?
And by the way, I stick to what I said in an earlier post on the hearings: none of this means we know how the Court (that is to say, Justice Kennedy) will ultimately rule. Oral arguments are the tip of a large iceberg on which a Supreme Court decision rests. Most of the justices will find a way to get where they want to go, and it won’t depend on Verrilli’s ability to argue the case or not.
[NOTE: After I wrote this, I saw that Glenn Reynolds of Instapundit has an article in the Washington Examiner that says much what I say about Verrilli’s problems articulating the defense of Obamacare—only Reynolds says it better. Here’s an excerpt, but please read the whole thing:
There are always arguments about the precise scope of delegated powers, and such arguments have regularly come before the Supreme Court. But it is one thing to argue about the precise extent of limits to enumerated power, and it is another thing entirely to deny their existence.
The last time that happened in front of the Supreme Court was in the 1995 case of United States v. Lopez, where Bill Clinton’s Solicitor General Drew S. Days III was caught short by questions from the bench in much the same fashion that Obama’s Verrilli was caught last week. In Lopez, the government wanted to argue that possession of a firearm near a school could be regulated as interstate commerce, because guns in school might lead to violence, which would lead to worse education, which would lead to dumber graduates, which would lead to a less productive national economy, which would mean less interstate commerce.
If that argument were accepted, the justices asked, what possible limit could there be to federal power under the Commerce Clause? Days couldn’t come up with one, and the government lost the case. It was not acceptable, the majority opinion said, to “pile inference upon inference” in order to extend federal power so far beyond its intended limits. “To do so would require us to conclude that the Constitution’s enumeration of powers does not presuppose something not enumerated, and that there never will be a distinction between what is truly national and what is truly local. This we are unwilling to do.”
But Days’ argument was straightforward compared with the government’s argument in the Obamacare case…]
Pundits and academics cannot believe that the deconstructing and de-contextualising they routinely resort to in their respective fields could not be made to sway the Court, or at least five-ninths of it. Of course I may be, even at this low level, over-analyzing. After all, even Justice William Brennan noted that “With five votes around here you can do anything.”
I agree, George Pal. They are unaccustomed to being called on their bull@#$% (w/o the option of running to Fortress Ad Hominem).
As to the blame of Virelli, it reminds of the leftist lament: Communism has never failed. It has suffered from incompetent leadership: across the board, complete, blanket, incompetent leadership in every single instance. Oh, if only ONE competent leader could emerge to prove the humanity and wisdom of communism.
Pity Verrilli – tasked with defending the indefensible.
After reading the entire transcript from the second day, my overriding impression of General Verrilli’s presentation was that of complete incoherence.
I’ve heard this old saying about arguing your case in court:
If the law is on your side, pound on the law.
If the facts are on your side, pound on the facts.
If neither the law or the facts are on your side, pound on the table.
Verrilli was left to pound on the table…
There is a legal strategy described as “grasping the nettle in the hand,” which seeks to deal directly with the main disqualifying issue first and before anything else. Verrilli would have profited, I think, from that strategy, and his argument from the first acknowledge that the mandate does and will require the rejection of the idea of “enumerated” powers; Don’t try and pussy foot about the issue; graps the nettle directly in the hand. However, such rejection is valid because the idea has become obsolete and the evolutionary process and thought of the Court is leading to that result and demands the rejection of enumerated powers. That way Vermilli could have presented the wanted result as a “brave and courageous” decision to Kennedy because no constitutional Justice would even consider such nonsense as the rejection of the fundamental principle of enumerated powers.
Progressives only employ the “grasp the nettle in the hand” approach when they are assured of the result. However, by that time, there’s rarely any argument left.
Not intending a threadjack, but…from the article about those 2008 candidates:
Beware those who campaign from the right side of their mouths, but govern with their left hands.
Nice post Neo.
Foxmarks, I am not a great admirer of McCain. In my mind he was an exemplary POW, and that is about it. On the other hand, many admirable Senators have adhered to the principle that barring clear disqualifying issues, the President should have his choices confirmed. Having said that, I too believe that the Bork, and Thomas confirmation debacles changed the game, and McCain, or any other Republican, would be justified in voting against most any nominee who came before them with an ideological bias, or political baggage.
The reason that the cost of health care for the uninsured is forced upon other people is the Emergency Medical Treatment and Active Labor Act, passed in 1986, which requires hospitals to provide emergency medical care regardless of citizenship, legal status or ability to pay, and provides no reimbursement, thus necessitating an increase in the cost of health care for everyone else. Supporters of Obamacare say that this cost-shifting is a problem which it was designed to alleviate.
Ginsburg says “[W]hat was unique about this is it’s not my choice whether I want to buy a product to keep me healthy, but the cost that I am forcing on other people if I don’t buy the product sooner rather than later.” While Ginsburg claims that the Commerce Clause allows a particular product, health care, to be treated differently than others because of the cost-shifting nature of the product, that cost-shifting only resulted from a statute that differentiated health care from other products. The cost-shifting problem was created by a statute. The solution to the problem is to repeal the statute, not to run roughshod over the Constitution. Ginsburg is putting the statutory cart before the Constitutional horse.
Our society was able to deal with the problem of the uninsured before 1986; we can find a way to do it again — without surrendering our liberties to a rapacious Federal government.
You could not be more right, Capn Rusty.
Your analysis goes to ground: Health care is not an inalienable right anymore than house care or food care or “happy care,” which ultimately is a function of health care. The long list of dependent criteria,
(In Lopez, the government wanted to argue that possession of a firearm near a school could be regulated as interstate commerce, because guns in school might lead to violence, which would lead to worse education, which would lead to dumber graduates, which would lead to a less productive national economy, which would mean less interstate commerce.)
is proof itself how meaningless the progressive case is.
Good to know a felllow out there.
To expand upon Cap’n Rusty’s point, the imagined limiting principle would not exist regardless of the presence of the cited statute…
If young people choose to not pay for insurance, their costs are shifted into the future. At some point, unless they are wealthy enough to be self insured, they will participate in the pool and pay for insurance at the elevated rates (assuming also that this is a demographic pattern and the young people entering the potential pool also choose not to buy insurance). They are therefore paying higher rates because young people are not buying insurance and thereby making up for the payments they didn’t make in the past.
There was no limiting principle for Verrilli to cite.
And for those of you who stayed home in 2008 rather than vote for John McCain, please note that Clement might be on the Supreme Court right now rather than either Sotomayor or Kagan (pick one) if McCain had won in 2008.
Ah, counter-factuals. And if the Republicans had nominated a Republican instead of Rino…; or if McCain had declined the nomination; or if McCain had resigned in favor of Palin; or if “former” Democrats had remained Democrats and voted for a moderate in the primary; or if…