Doomed!

Doomed!

That is the feeling that washed over us after listening to audio tapes of the oral arguments surrounding the health care debate.

We’re not referring to the ultimate fate of the “mandate” in the President’s health care reform act.  We’re referring to the manner in which we govern ourselves and decide issues critical to our society.

Doomed!

The arguments presented by both sides as respects the individual mandate were incoherent at best and embarrassing at the very least.

Let’s start with Donald B. Verrilli Jr., Solicitor General of the United States.  Mr. Verrilli was tasked by the government to make the case that congress has the constitutional right to require individuals to purchase insurance.  Mr. Verrilli is an experienced litigator who has argued before the Supreme Court on eighteen previous occasions.  In this particular instance Mr. Verrilli looked more like a first year law student arguing in a small claims court.  Mr. Verrilli’s presentation was so bad you had to wonder if he had spent even one minute in preparation.  Setting aside Mr. Verrilli’s obvious nervousness, coughing, stuttering, repetitions and miss-statements; Mr. Verrilli was unable to present a coherent argument of the government’s position.  In fact Mr. Verrilli’s presentation was so convoluted that after a period of time the liberal members of the Court began making his points for him.  Washington Post columnist Ezra Klein tweeted: “you could mark the point…page 14…when the liberal justices decide Verrlli is screwing up and step in to make the argument for him.”  CNN contributor Jeffery Toobin referred to Verrilli’s performance as a “train wreck.”  Verrilli’s day in court was consistent with the governments continued inability to communicate their position on the law.  For three years the government has struggled to effectively explain the law to the American people.  That struggle inexplicably continued before the Court; and may prove to have disastrous consequences for the government’s position.

But Mr. Verrilli was not the lone purveyor of embarrassing commentary.

Antonin Scalia has served as an Associate Justice of the Supreme Court since his appointment by Ronald Reagan in 1986.  Known for his conservative opinions, it was assumed by most that Justice Scalia would side with those who oppose the mandate.  Justice Scalia did not disappoint, asking several hard questions of Mr. Verrilli.  Then Justice Scalia jumped the shark.  He had the temerity to opine that if we allow congress to require people to buy insurance the next thing you know congress will be requiring people to buy broccoli.  Frankly, such an analogy is stupid.  And to hear Justice Scalia make such a comparison with all seriousness belittles the Court’s proceedings and only further illustrates the impact of bipartisanship on uninformed opinion.

For the benefit of Judge Scalia and those like him who do not understand the difference; let us be clear.  Health care is not broccoli.  Millions of us may not choose to ever buy broccoli.  But every one of us will need health care at some point in our lives.  And when those who choose not to pay for health care ultimately need it; the cost for the services the uninsured receive is passed on to the rest of us.  A person’s decision to decline the purchase of broccoli, or a cell phone to use Justice Roberts’ inane example, does not affect the rest of us.  But a person who decides not to buy health insurance, and then avails themselves of its benefits for free, affects us all.  The fact that someone sitting on the bench of the highest court in the land is unable to make that distinction is mystifying.

It is true that one cannot predict the way a particular justice will rule based on the statements they make or the questions they pose during oral arguments.  Many justices who are leaning in a particular direction will often ask hard probing questions to illicit testimony contrary to their tendencies.  They do so to make sure that they have it right.  We won’t know the results of their deliberations until sometime in June.

But what we do know today is this.  If we were making a promotional video of all that is good about our system of governance; the best and the brightest voicing their opinions in a free society…we’d make sure this recent session never saw the light of day.