In the days after the Supreme Court heard oral arguments in the healthcare challenge and again after the Arizona immigration law case, there was a lot of chatter among Court watchers. And a lot of it involved one question: Just how bad was Solicitor General Donald B. Verrilli, Jr.’s performance?

As the New York Times’ Adam Liptak points out in his piece yesterday, Supreme Court oral advocacy is usually not a spectator sport, at least not to the extent that it was when it came to Verrilli’s performance at the podium in March and April. But after the healthcare case, some observers skewered his performance as if he were a quarterback who choked and got repeatedly sacked at the Super Bowl.

Verrilli did choke a little – literally – at the start of the second day of arguments, coughing and needing to pause to take a drink of water in an effort to clear his throat of something. That problem only lasted briefly, but it proved to be a metaphor to how some saw his entire performance, spurring headlines like: “Obama’s Solicitor General Coughs, Stumbles, Stutters Through ObamaCare Defense.”

Others cut right to the chase, with headlines like the one on Mother Jones’ website: “Donald Verrilli Makes the Worst Supreme Court Argument of All Time.”

The critiques of his performance had the media on high alert once the immigration case came up. When at one point Justice Sonia M. Sotomayor suggested that Verrilli’s argument was “not selling well” with the justices, the press made a little collective gasp. Here we go again, we thought. We were right. The reviews were not good.

Liptak pointed out that in the court of public opinion, the jury was split. Members of the Supreme Court bar defended Verrilli, saying he had a very tough job to do, and he rose to the occasion.

“It always looks bad when the justices aren’t buying what you’re selling,” Ted Olson, veteran Supreme Court advocate and former solicitor general,  told Liptak. “Don had very, very difficult cases. That hand was dealt before he got there.”

When the 5th Circuit speaks, the Justice Department listens – and responds.

In a memorandum to a panel of federal judges hearing a challenge to the federal health care law, Attorney General Eric Holder backed comments made earlier in the week by President Barack Obama that courts ought to tread lightly when considering challenges to laws passed by Congress.

But Holder said the president’s comments in no way reflected a change in the Justice Department’s views on judicial authority, nor did they imply that courts do not have authority to consider constitutional challenges to federal laws.

Earlier this week, Obama suggested at a news conference that overturning the health care law would amount to “judicial activism.”

For more on Holder’s memo, see the full story on Lawyers USA online.

Meanwhile, Senate Minority Leader Mitch McConnell has chimed in on the matter.

“The president crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it,” McConnell said during a speech on Thursday, according to CNN. “Respectfully, I would suggest the president back off.”

After President Barack Obama warned that a U.S. Supreme Court decision striking down parts or all of the health care law would be an act of “judicial activism,” Attorney General Eric Holder echoed that sentiment Wednesday.

Speaking at an event in Chicago, Holder called the president’s comments “appropriate.”

“Courts have the final say in the constitutionality of statutes,” Holder said, according to the Chicago Tribune. “Courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people … the Congress … pass.”

Holder’s comments came after 5^th Circuit Judge Jerry Smith, part of a panel hearing a challenge to the health care law’s constitutionality, asked the Justice Department to clarify its position on courts’ authority to strike down federal laws. Smith issued the demand after becoming concerned by Obama’s comments, the Washington Post reported.

During a court hearing, Smith demanded that the Justice Department submit the three-page, single-spaced letter by noon Thursday, a lawyer in the courtroom told the Post.

The judge “said the president has been saying that unelected branches of government shouldn’t be activist and strike down federal laws,’’ the lawyer told the Post, speaking on condition of anonymity.

Sen. Chuck Grassley, angered by an opinion issued by the Justice Department’s Office of Legal Counsel finding President Barack Obama’s recent recess appointments legal, took aim at the opinion’s author, suggesting that she won’t be confirmed by the Senate again.

The opinion, authored by Assistant Attorney General Virginia A. Seitz earlier this month, found that Congress was in recess when Obama made four recess appointments despite Congressional Republicans’ efforts to gavel in pro forma sessions over the holiday break to prevent such appointments.

“I gave the President and Ms. Seitz the benefit of the doubt in voting to confirm her nomination,” Grassley said in a Senate floor speech Monday, according to Politico. “However, after reading this misguided and dangerous legal opinion, I’m sorry the Senate confirmed her. It’s likely to be the last confirmation she ever experiences.”

Those comments rankled some OLC attorneys from previous administrations, who said such blackball threats are dangerous.

“OLC lawyers should be free to render their honest opinion and not be threatened with adverse career consequences by either the White House or Congress,” Richard Painter, a White House ethics lawyer during the Bush administration, told Politico.

“The Senator’s name-calling is misplaced,” said Jack Goldsmith, who helmed the OLC during President George W. Bush’s administration.

President Bill Clinton’s chief OLC attorney Walter Dellinger said he was astonished by Grassley’s comments. “I can’t believe that Senator Grassley has actually read Seitz’s thoughtful and carefully reasoned opinion.  And he may not be aware that attorney’s in the administration of President George W. Bush reached the same conclusion that she reached,” Dellinger told Politico.

Former Attorney General Michael Mukasey thinks the arguments being made by those calling on Supreme Court Justices Clarence Thomas and Elena Kagan to recuse themselves from consideration of the health care challenge are “nonsense.”

In an editorial today in the Wall Street Journal, Mukasey, who helmed the Justice Department for two years under President George W. Bush, takes on critics who think the justices should be disqualified because of Thomas’ wife’s work for groups advocating for the law’s demise and  Kagan’s work as solicitor general when the health care challenges began.

Mukasey takes a strictly legal approach to the situation. The facts underlying the allegations of potential bias do not raise to the level of federal recusal standards, he concludes.

Mukasey wrote; “upon even a cursory examination of the facts it is clear that neither justice should step aside. The court we have should decide the case.”

He noted, however, that the calls for the justices to step aside are not legal at all, but rather a political – a symptom of the increasingly politicized atmosphere the justices face from the time that they sit before the Senate for confirmation.

“The selection of judges has become a high stakes exercise for agenda-driven politics, with nominees often selected with at least one eye focused on their expected tilt on the issues of the day,” Mukasey wrote. “[Later, w]hen contentious cases then come before them, the agenda-driven politics that helped seat the judges does not disappear, nor do the stakes diminish; they rise—along with incentives to disqualify judges.”

The justices of the U.S. Supreme Court and other Washington bigwigs will have to find alternative ways to be festive this year after Attorney General Eric Holder called off the Justice Department’s annual holiday party for budgetary reasons.

The Justice Department affair usually drew hundreds of Washington officials, from agency heads to Supreme Court jurists, reports the Washington Post’s In the Loop. The fete featured top-shelf drinks and fancy food – “we’re not talking munchies here,” the Post’s Al Kamen observed – as well as a chance for Washington’s powerful to rub elbows.

But Holder is not the only one mindful of the current tough economic situation. The FBI has also canceled its holiday party, and the Defense Department and other agencies are opting for scaled-down holiday celebrations this year.

Members of Congress are amplifying their calls to judicial and Justice Department officials demanding investigations of two Supreme Court justices’ alleged conflicts of interest in the health care reform case pending at the Court.

Since the Court agreed to consider the constitutionality of the federal health care reform law’s individual mandate as well as several other substantive and procedural issues related to the law, calls from members of Congress for Justices Clarence Thomas and Elena Kagan to sit out have grown louder.

Friday New York Democrat Rep. Louise Slaughter sent a letter, signed by 52 House members, to the U.S. Judicial Conference requesting a Justice Department investigation into Thomas’ initial failure to include on financial disclosures his wife’s income from organizations opposing the health care law. It’s the second time the lawmaker has asked the Conference to refer the matter to the U.S. Attorney General.

In January, Thomas amended the disclosure forms, calling the initial omission of his wife, Virginia Thomas’ income from the Heritage Foundation an oversight attributable to a “misunderstanding of the filing instructions.”

Meanwhile Senate Republicans are also pressing Attorney General Eric Holder over the health care case, seeking information on whether Kagan’s work as solicitor general creates a conflict of interest that precludes her involvement in the case.

According to Politico, Sens. Mitch McConnell, R-Ky., Jon Kyl, R-Ariz., Chuck Grassley, R-Iowa, and Mike Lee, R-Utah, sent a letter to Holder saying the Justice Department has handled questions about Kagan in a “highly questionable manner” and demanding clarification on Kagan’s role.

“Your Department’s refusal to provide information to the Congress that could eliminate this apparent conflict of interest only undermines … confidence [in the administration of justice] further,” the letter stated.

Emails recently released from the Justice Department reveal that, in 2010, then-Solicitor General Kagan called Senate support for the health care bill “simply amazing.”

Spotted at the U.S. Supreme Court today: Donald Verrilli making his first oral argument before the justices as solicitor general. He argued for the government in the final argument of the week in the copyright case Golan v. Holder.

Katyal

Soon after Donald Verrilli was confirmed and sworn in as U.S. solicitor general, Neal Katyal – who had served as acting solicitor general since now Supreme Court Justice Elena Kagan left the post last year – submitted his resignation, effective at the close of the Supreme Court term.

The National Law Journal’s Tony Mauro reports that Katyal’s decision to leave the SG’s office was expected, and that he will now become a hot commodity to private firms looking to snap him up.

“He is going to be a very hot commodity,” Thomas Goldstein of Goldstein, Howe & Russell and SCOTUSblog told Mauro.

Before being appointed to the office by President Obama, Katyal was best known for arguing and winning the 2006 case Hamdan v. Rumsfeld on behalf of Guantanamo detainees.

He’s not going.

Attorney General Eric Holder, in a speech earlier this week, made it clear that he intends to continue at the helm of the Justice Department, calling it his “dream job.”

“Like you, I love this department. And, like you, I am proud – not only to serve it, but also to champion its work,” said Holder, speaking to about 150 Justice employees in the department’s Great Hall, according to the Washington Post.

Holder outlined the priorities of the department going forward, which include focusing on fighting terrorism, violent crime and financial fraud.

The remarks came weeks after Holder held a news conference – then abruptly ended it – after the Obama administration broke with Holder and decided to hold military tribunals for the accused Sept. 11 conspirators rather than civilian trials in federal court. But Holder stood by his position.

“Let me be very clear about this,” he said. “We will continue to rely on our most powerful and most proven tool in bringing terrorists to justice: our federal court system.”