CNN's legal analyst Jeffrey Toobin dialed back his wild predictions, Tuesday. The same man who only last week predicted an eight-to-one victory for Obamacare in the Supreme Court, now derides the government's case as a legal "train wreck" that will likely be "struck down."
Toobin appeared on CNN to mock the Obama team's peformance: "This was a train wreck for the Obama administration...This law looks like it's going to be struck down." Host Ashleigh Banfield was shocked, marveling, "Wow." In a stunned tone, she added, "This is not at all what I expected you were going to be saying." [MP3 audio here.]
Toobin piled on, insisting of the Obama case: "...Donald Verrilli, the solicitor general, did a simply awful job defending the law. He was nervous. He was not well spoken.
Issuing a full mea culpa, the analyst conceded, "I'm telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong."
This is quite a turnaround for Toobin. On the March 23 Situation Room, he confidently predicted, "I actually think that Chief Justice Roberts and perhaps even Justice Scalia and Justice Alito might join Justice Kennedy in upholding the law."
A transcript of the March 27th exchange, which occurred at 12:08pm EDT, follows:
JEFFREY TOOBIN: This was a train wreck for the Obama administration.
ASHLEIGH BANFIELD: [Whispers] Wow.
TOOBIN: This law looks like it's going to be struck down. I'm telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong. Justice Kennedy, the swing vote, was enormously skeptical. Justice Alito, Justice Scalia, were constantly skeptical. Justice Thomas didn't say anything but we know his position on the issue. The only conservative justice who looked like he might uphold the law was chief Justice Roberts who asked hard questions of both sides. All four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were- they, they did not meet with their success with their colleagues. Most surprising to me perhaps, Donald Verrilli, the solicitor general, did a simply awful job defending the law. He was nervous. He was not well spoken. The argument got off to a very bad start for the administration. And it was really the liberal justices who is carried the argument much more than the lawyer.
The argument that seemed to give justice Kennedy the most trouble and he is, of course as we know, the swing vote in so many issues, justice Kennedy practically his first question out of the box was, we know that Congress can regulate commerce. But can Congress create commerce? Can -- and Donald Verrilli had great difficultly answering that. He said no, but he said we're not creating commerce here. There was a lot of discussion of the issue, the liberal justices kept making the point that we discussed here many times, that people who refuse to buy health insurance are in fact part of the health insurance market. They are, in fact, imposing costs on the taxpayer. And Paul Clement, who was representing the 26 states challenging the law, responded that if you believe that not acting is, is commerce, there's no limiting principle to that. And, certainly the conservative justices were very responsive to that argument. Paul Clement I thought did a really excellent job attacking the law. And if I had to bet today, I would bet that this court is going to strike down the individual mandate. The only possibility I saw-
BANFIELD: This is not at all what I expected you were going to be saying. Not at all. But, I do want to ask you this.
TOOBIN: That's why we cover the news, to see what happens.
BANFIELD: This is a mammoth task for one man. No kidding. This is a mammoth task for the Solicitor General. Many people watching this process saying going into three days, two hours a day of oral arguments is huge for one person Is this a factor of not having the right material, not having a good argument or not being prepared and just having a bad day?
TOOBIN: I think- you know, I can't answer that. I don't know why he had a bad day. I mean, he is a good lawyer, he was a perfectly fine lawyer in the really sort of tangential argument yesterday. He was not, simply, ready with the answers for the conservative justices.
-- Scott Whitlock is the senior news analyst for the Media Research Center. Click here to follow him on Twitter.