Monday, April 2, 2012

Progressive Puling About the Obamacare Hearings

Obamacare advocates blame its legal troubles on everything but flaws in the actual law.

When Obamacare's passage two years ago produced the constitutional challenges that eventually led to last week's oral arguments before the Supreme Court, our friends on the left sneered. They told us the lawsuits were frivolous publicity stunts doomed to be laughed out of the lower courts and that the justices of the highest court in the land would never stoop to hear them. The progressive pundits were wrong, of course, largely because very few of them actually listened to and comprehended the basic arguments. Now that the defense of Obamacare has turned out to be a "train wreck," as CNN's Jeffrey Toobin described it, the usual suspects are blaming the disaster on the incompetence of the Solicitor General, the biases of the Court's conservative justices, and even the diffidence of the liberal justices. Predictably, our lefty friends are wrong again.

These talking points are not merely incorrect, however. They offer a revealing glimpse into the cynicism of the left. The first instinct of the Democrats and their media lickspittles is to assassinate the character of anyone, including lifelong liberals, who disagree with them or simply fail to live up to their unrealistic expectations. This latter crime was committed by Solicitor General Donald Verrilli last Tuesday, when he had to stand before the United States Supreme Court and attempt to defend the individual mandate. Like any honest man forced to make a fundamentally dishonest argument, he had trouble making the sale. He stumbled, coughed, and often seemed at a loss for words. And for this sin, he has been relentlessly criticized and even ridiculed by people who he probably thought were on his team.

A typically despicable attack was leveled at Verrilli by the eminent legal scholars at Mother Jones: "Sounding less like a world-class lawyer and more like a teenager giving an oral presentation for the first time, Verrilli delivered a rambling, apprehensive legal defense of liberalism's biggest domestic accomplishment since the 1960s -- and one that may well have doubled as its eulogy." Some of the left's Monday morning quarterbacks actually had the audacity to give him advice on how he should have argued the case. Yale law professor Akhil Reed Amar, writing in Slate, imagines himself standing in Verrilli's shoes and knocking every question from the Supremes out of the park: "Solicitor General Donald Verrilli was grilled by the Supreme Court's conservatives. Here is what he should have said …"

Amar, like most of Verrilli's other progressive critics, has been warming the bench in academia while the Solicitor General has actually been playing in the big leagues. Having graduated from Columbia Law, Verrilli clerked for Supreme Court Justice William Brennan and went on to become a senior litigator at one of the country's most prestigious law firms. In government, he has served as Deputy Counsel to the President, Associate United States Deputy Attorney General and eventually rose to his current post after it was vacated by Elena Kagan. Verrilli has also argued seventeen previous cases before the Supreme Court. So, Obamacare's bad week in Court was not caused by an inexperienced or incompetent Solicitor General. It was caused by the law itself. It is an obviously unconstitutional statute that simply cannot be honestly defended.

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