On 3/29/2012 9:41 AM, Mossingen wrote:
> I've argued lots of cases in the Tenth Circuit Court of Appeals and in the
> Oklahoma Court of Criminal Appeals. On the whole, I'd say oral arguments
> typically do not matter that much. The cases are cited on the briefs, by
> and large. In a close case, oral argument might sway an equivocating judge,
> but my sense is that it doesn't work that way.
I was going to mention that, but in this case he did have an avuncular
swing judge saying, essentially, "I'm skeptical. Convince me." It was an
uphill battle for sure, but if Verrilli convinced anyone of anything, it
was that even the Obama administration wasn't terribly confident of the
legislation's constitutionality.
> Also, the tone of the arguments are often counterintuitive. Many times, I
> have seen the judges pound my opponent (usually the attorney general in
> capital cases), and an observer might get the sense that they are going to
> rule in my favor. In reality, it usually turns out that they are ruling
> against me and are just testing the state's case at the argument to verify
> their decision.
>
> Bottom line is that, in my experience, we just can't tell much of anything
> from oral arguments (unless it is the rare case where one side concedes some
> major point or has overlooked a critical fact issue).
That's what Harry Reid said. I was going to mention that too, but I
really don't think it applies in this particular case. Verrilli got
raped. The individual mandate, at least, is gone. I'd bet pretty heavily
on that.
> Getting trapped at the arguments is a painful thing. I remember one time I
> was in Denver arguing a case in the Tenth Circuit. I was last, so there
> were several arguments before mine, so I had to sit in and watch them. One
> was a typical search and seizure issue stemming from a traffic stop. The
> appellant's lawyer got about 3 minutes into it and appeared to have a super
> strong case. One of the judges piped up, "But, counsel, how does your
> client have standing to object to the search?" Oh shit. The car was a
> rental car and the appellant was just a passenger or some such. It was
> obvious that the lawyer arguing the case had not considered the standing
> issue and we had to watch that poor guy tapdance under a barrage of
> questions about standing for the rest of his time. It was horrible.
I think every lawyer that spends any time in court has experienced those
uncomfortable, I-want-to-crawl-under-the-table moments, but this was a
case of a lawyer not having his sh*t together right from the first
sentence of his opening remarks. All I can say is listen for yourself. I
was like.."wtf? is Obama *trying* to throw this hearing?"
James, the broccoli question. He couldn't even answer the fucking
broccoli question. They've been talking about that one of Fox News for
two years. How could he not be ready for the broccoli question?