New York Times

March 24, 2012
 

A Lawyer Who Can Simplify the Complex Draws a Big One: Obama’s Health Overhaul

WASHINGTON — If history is any guide, Donald B. Verrilli Jr. will hole up in a hotel close to the Supreme Courtbuilding, eat only salmon for dinner because it is said to help brain function, and give his undivided attention to the final preparations for what promises to be the biggest case of his life.

Less than a year after becoming solicitor general, Mr. Verrilli will go before the Supreme Court for three days next week to defend the Obama administration’s health care overhaul law, one of the president’s signature and most controversial accomplishments.

Mr. Verrilli, a veteran of 17 cases before the Supreme Court, five of them since taking over as solicitor general, has been an advocate for the rights of death row inmates and has successfully argued fine points of telecommunications law. He has also had at least 30 cases before federal appeals courts and state supreme courts.

But this will be the first time he has argued the health care law in public.

Former colleagues and court opponents say he is ready. “He will be able to make the best case for the legislation,” said Theodore B. Olson, a Washington lawyer who has argued 58 cases before the justices and served as solicitor general under President George W. Bush.

Mr. Verrilli’s strength, Mr. Olson said, is that he “marshals his positions in clear and understandable terms” rooted in law and common sense.

Neal K. Katyal, a professor at Georgetown University Law Center who defended the health care overhaul as one of Mr. Verrilli’s predecessors, recalled watching Mr. Verrilli argue a case before the Supreme Court in 2006. He called him “poised, confident, concise and brilliant.”

“I came out of the courtroom thinking, ‘There’s no way in heck I can ever do this,’ ” Mr. Katyal said.

A tall man with a baritone voice and a salt-and-pepper mustache, Mr. Verrilli, 54, is described by friends as exceedingly polite and disarmingly self-effacing. During trials, he makes a habit of graciously acknowledging opponents when he thinks they make a fair point.

For all his gentility, Mr. Verrilli is also known for being passionate.

“Don can get a little intense right before a major Supreme Court argument,” Paul Smith, a longtime friend who worked with Mr. Verrilli for about two decades in private practice in Washington, said as he described Mr. Verrilli’s salmon-eating ritual.

Before the bench, Mr. Verrilli is serious and methodical, his voice getting deeper the more impassioned he becomes.

His demeanor strikes a stark contrast with that of Paul D. Clement, a solicitor general under Mr. Bush, who will also appear before the justices next week — to argue against the health care law.

Mr. Clement, who was a clerk for Justice Antonin Scalia and has argued more Supreme Court cases than any other lawyer since 2002, comes across as more relaxed in court appearances. Mr. Clement argues without notes, citing, from memory, the specific page numbers of legal documents. He has also been known to crack jokes.

Both men are known for distilling complex issues into straightforward arguments.

Even when Mr. Verrilli was not the highest-ranking official at a meeting, his thoughtfulness, preparation and civility gave him a gravitas that commanded the respect of others, said Joseph Guerra, a Washington lawyer who has known him for more than 20 years and served with him in the Justice Department.

“His openness to other points of view ultimately makes him a better lawyer,” Mr. Guerra said.

Mr. Verrilli has at times broken ground by raising new legal theories. In the 2005 case MGM v. Grokster, his best-known Supreme Court victory, he successfully argued that companies could be liable for inducing piracy if their business plans encouraged illegal downloading.

In 2009, while working in the Justice Department, he developed limits on the state secrets privilege, intended to make sure that it is invoked only when there are legitimate national security concerns.

In 2003, Mr. Verrilli successfully argued before the Supreme Court that if defense lawyers failed to investigate their clients’ background and inform a jury of mitigating evidence during a capital sentencing hearing, they denied their client effective assistance of counsel. This argument helped overturn the death penalty for a pro bono client of Mr. Verrilli’s, Kevin Wiggins.

Although Mr. Verrilli became convinced of Mr. Wiggins’s innocence, the Supreme Court declined to reconsider whether there was enough evidence to support the conviction. “Don took it very hard, especially when he had to go explain that reality to Wiggins,” said Mr. Smith, his longtime friend.

Mr. Verrilli received his bachelor’s degree in history, with honors, from Yale in 1979. He received his law degree in 1983 from Columbia, where he was editor in chief of the law review.

Mr. Verrilli was a clerk for Judge J. Skelly Wright of the United States Court of Appeals and for Justice William J. Brennan Jr. He was special counsel to President Bill Clinton in 1994, and he assisted in the confirmation process for Justice Stephen G. Breyer. In the late 1990s, with the emergence of the Internet, Mr. Verrilli was at the center of several court battles over a federal law aimed at spurring telecommunications competition.

In 2010, he moved to the White House, and as an associate counsel he dealt with financial regulation, immigrationand the gulf oil spill.

Mr. Verrilli is married to another lawyer, Gail Winnifer Laster, who is on the Democratic staff of the House Financial Services Committee. The couple have one daughter, Jordan, 20. Former colleagues said that Mr. Verrilli was also a skilled cook, mostly of Italian cuisine.

President Obama nominated him for his current position in January 2011 after Elena Kagan left it to become a Supreme Court justice. Mr. Verrilli was approved, 72 to 16, by the Senate in June.

When Mr. Verrilli steps to the lectern on Monday, the stakes could not be higher for him.

He will enter what legal analysts say is relatively uncharted territory. There is little precedent to guide the debate over whether Congress can require most Americans to have health insurance, they say.

But those who know Mr. Verrilli say that he is the perfect lawyer for the job.

“The bottom line,” said Walter Dellinger, who served as acting solicitor general during the Clinton administration, “is he has the trust of the court — the whole court.”

Kitty Bennett contributed research.