At the VC, David Bernstein appraises the work of U. S. Solicitor General Verrilli (the "SG") in the oral arguments before the Supreme Court today:
http://volokh.com/2012/03/28/sg-verrilli-relies-on-the-the-constitutions-preamble
This strikes me as part of a pattern I detect throughout this litigation and especially in the SG’s oral argument: the government’s lawyers seem to have no idea how conservative jurists typically think about the Constitution. Instead, they make arguments that would get almost unanimous nods of approval in the Harvard (or Columbia, the SG’s alma mater) Law School faculty lounge, but are not remotely persuasive to the other side.
I noticed that too — that the SG seemed unable or unwilling to answer direct questions about limitation of government powers, in particular. The truly cynical view would be that he wasn't able to answer because there are no answers; the government doesn't take the position that there are any limits on the Commerce power.
Maybe that is so, but I think it is much more likely that he didn't answer in any terms that conservative jurists are going to appreciate because what Bernstein suggests seems to be true really is true: "the government lawyers… have no idea how conservative jurists typically think about the Constitution."
Admit it, you see it in your friends' Facebook posts, you see it in newspaper editorials, you see it in comments on news stories, you heard it in your college classes, you see it at work: people everywhere, increasingly even the most educated people, never bother to grasp the reasoning and ideas in their opponents' minds. Instead they dismiss them as evil or stupid, or set up a humorous straw man to poke fun at. The attempt to really understand what your opponent is thinking has gone by the wayside.
I know people, educated, many academic degrees, my age and older, who regularly post comments and statuses along the lines of "No thinking person would ever vote Republican." i see approving comments on caricatures of conservatives as backwoods racist rednecks or exploiting fat cats in suits — take your pick — and comments disparaging persons who belong to minority groups and yet — inexplicably, apparently! — have the temerity to hold conservative views. Sure, they might be joking. Some probably are, and if you cornered them they might admit that probably there are ideological conservatives who have reasons for holding the opinions they do, and those reasons are even reasonable, though disliked. I am coming to think, in some of the cases, the writer actually believes his own stereotypes. If these intelligent individuals can be snookered in that way, I don't see why a government lawyer should be exempt.
This is not a phenomenon that is exclusive to liberals, by the way. It seems pretty universal. Conservatives do it too.
Doubtless it is entertaining to think of your opponents as yokels, and maybe it is motivating to think of them as evildoers (and yourself, fighting them, as on the side of unvarnished good). But doesn't it strike anyone as rather foolish? Isn't underestimating your opponent kind of a classic blunder, the sort of thing that high school debate teams understand? Would it not make more sense to anticipate your opponents' arguments by thoroughly understanding their positions on their own terms?
But I guess it just isn't as satisfying.
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