WASHINGTON — Memo to the third floor at Justice Department headquarters: Ian Gershengorn will soon be pacing the corridors again.
When preparing for oral arguments in big cases, Mr. Gershengorn makes a habit of walking long laps around the building’s rectangular core, first past the civil and antitrust divisions, then the Office of Professional Responsibility and the appellate branches, mumbling to himself while hunched over note cards. People try not to stare.
There has been a lot of pacing lately. Since March, it has fallen to Mr. Gershengorn, 43, a deputy assistant attorney general, to defend the Obama administration against nearly two dozen legal challenges to the president’s health care overhaul. For the moment, the burden of defending the constitutionality of President Obama’s signature legislative achievement falls squarely on Mr. Gershengorn and his team of more than a dozen litigators.
The health care cases have turned Mr. Gershengorn into something of a courthouse circuit-rider, traveling week after week to Virginia and then Florida and on to Michigan to repeat the same arguments.
He faces perhaps his biggest test on Thursday when he returns to Pensacola, Fla., with the uphill task of turning around a federal district judge, Roger Vinson, whose preliminary rulings have been forthrightly antagonistic. The lawsuit was filed by governors and attorneys general from 20 states, all but one of them Republican.
The redundancy of the hearings has done little to ease Mr. Gershengorn’s anxiety each time he prepares to represent the United States in a landmark case that will most likely be decided by the Supreme Court.
“It puts the fear of God in you a little bit,” he said in an interview in his office. “I start to get the feeling in the pit of my stomach. I start to pace around the building a little more, and become more irritable.” Paraphrasing Samuel Johnson, he added: “Nothing focuses the mind quite like an execution.”
For the time being, Mr. Gershengorn and his colleagues hold an unblemished record. In the only two cases where judges have ruled on the merits — in Detroit and in Lynchburg, Va. — the federal government has prevailed.
But a ruling is expected any day in Richmond, Va., where Judge Henry E. Hudson, like Judge Vinson, has expressed skepticism about the law’s central provision, which requires most Americans to obtain insurance starting in 2014.
Mr. Gershengorn said he would not be surprised if district judges left the appellate courts to sort through a scramble of contradictory opinions.
“You try not to get too caught up in the ebb and flow of individual decisions,” he said. “I think we are right on the law and that ultimately we are going to prevail.”
As director of the Justice Department’s Federal Programs Branch, Mr. Gershengorn oversees one of the most captivating dockets in American jurisprudence. It is his office’s job to represent the government against constitutional challenges, and its caseload includes the “don’t ask, don’t tell” policy on gay and bisexual members of the military, the rights of suspected terrorists held at Guantánamo Bay, Cuba, and rules governing embryonic stem cell research.
“Every day,” Mr. Gershengorn said, “I deal with two or three cases of a lifetime.”
The Justice Department’s top leadership handpicked Mr. Gershengorn to handle the health care cases in the lower courts, said Thomas J. Perrelli, an associate attorney general. Mr. Gershengorn has reviewed and approved the written briefs in every case, and has personally argued the administration’s position in three courtrooms.
Shortly after Mr. Obama took office, Mr. Perrelli recruited Mr. Gershengorn to the Justice Department from the national litigation firm of Jenner & Block, where each worked in the Washington office. He took a substantial pay cut and now earns above $170,000 a year.
Mr. Gershengorn grew up outside Boston, where his father is a cardiologist and his mother a state court judge. Two sisters have also worked as Justice Department lawyers, as did Mr. Gershengorn’s wife. The couple have three sons.
Mr. Gershengorn graduated from Harvard and Harvard Law, and clerked for both Judge Amalya L. Kearse on the Court of Appeals for the Second Circuit, in Manhattan, and Justice John Paul Stevens on the Supreme Court. He then served as counsel to Deputy Attorney General Jamie Gorelick in the Clinton administration.
Ms. Gorelick said she found Mr. Gershengorn to be honest, simultaneously soft-spoken and determined, and possessed of intelligence and humility beyond his years. “He was a real star,” she said, “and it does not surprise me that he was picked for one of the toughest jobs for a lawyer in the Obama administration.”
Mr. Perrelli said Mr. Gershengorn excelled at Jenner & Block, where he specialized in both telecommunications law and Indian sovereignty disputes, mastering complex issues involving novel legal theories. That, Mr. Perrelli said, made him an ideal fit for the health care cases.
The attacks on the law have been various, but the central argument is that Congress exceeded its authority under the Commerce Clause of the Constitution by passing a bill that will penalize Americans for not obtaining health insurance.
To do so, the plaintiffs argue, is to regulate inactivity, and if allowed would remove any reasonable limits on federal power.
Mr. Gershengorn responds that the insurance requirement falls within Supreme Court precedents allowing Congress to regulate “activities that substantially affect interstate commerce.” With each hearing, he has sought to perfect his argument that the act of not obtaining insurance is itself a consequential commercial decision.
“The appearance of inactivity is just an illusion,” he told Judge Hudson in October. “The consumption of medical services without paying for them, and then shifting those costs, has a devastating effect on the economy.”
Although he was not directly involved, Mr. Gershengorn was a clerk on the Supreme Court in 1995 when it ruled in United States v. Lopez, the first of two cases since the New Deal that have redefined the limits on Commerce Clause powers. He said he sensed then that “we were at the beginning of a dialogue and not the end of it.”
In court, Mr. Gershengorn, who is 6-foot-2 and as lanky as Jimmy Stewart, bends slightly over the lectern as he braces for the judge’s inevitable interruptions. He uses words like “extraordinary” and “revolutionary” to characterize the plaintiffs’ claims, impressing upon judges that “overturning an act of the democratically elected Congress is a major, major deal.”
Mr. Gershengorn favors an even-tempered approach, but his intensity can sometimes project him toward the edges of judicial deference.
When Judge Hudson, in questioning him during the October hearing, mischaracterized another judge’s ruling, Mr. Gershengorn was perhaps too quick to pounce.
“No, no, your honor, that’s not correct, absolutely not correct,” he began, before catching himself. “Excuse me, your honor. I didn’t mean to offend.”
Judge Hudson seemed to brush it off. “I stand corrected, then,” he said.
Judge Hudson later complimented the lawyers on both sides, saying it had been one of the best-argued cases of his tenure.
Mr. Gershengorn is a Democrat and contributed to Mr. Obama’s campaign, but does not consider himself particularly partisan. His only interaction with the president came during pickup basketball games in law school.
But Mr. Gershengorn does believe in the health care law, and is proud to defend it.
“I certainly know people who have illnesses and can’t get insurance or are stuck at a job,” he said. “To have the chance to defend legislation that actually extends coverage to those people, I think is critically important. I’m honored to do that.”
This article has been revised to reflect the following correction:
Correction: December 9, 2010
An earlier version of this article referred incorrectly at one point to a party in a lawsuit over the health law as the defendants in the suit.