Federal Courts and Nominations

Keeping a High Court Profile

By John Gramlich, CQ Staff

Paul Clement was wrapping upan oral argument on behalf of the pharmaceutical industry at the Supreme Court last week when he came to a sudden stop. The man widely seen as the best high court advocate of his generation — famous for never using notes and for memorizing the minutiae of his cases — could not remember the name of a prominent appellate judge in Chicago, whose ruling he was citing.

Clement recovered a moment later, blurting out Diane Sykes’ name and adding — perhaps for good measure — that she was a “very distinguished judge.” Sykes and Clement are widely considered rivals for any opening on the Supreme Court during a Republican administration; funny that he should forget that name.

It amused those in the courtroom, particularly Chief Justice John G. Roberts Jr., who laughed long and hard from his seat on the bench.

Clement certainly has been at the court often enough to feel at home. The 45-year-old former solicitor general under President George W. Bush, now a partner at the small Washington firm Bancroft PLLC, has argued more than 60 cases before the justices, including seven this term alone.

Tom Goldstein, who represented two former sales representatives on the other side of the pharmaceutical case (Christopher v. SmithKline Beecham Corp.), calls Clement’s record “by far the most significant list of cases that a private lawyer has argued since at least Daniel Webster.”

But the nature of his cases is more noteworthy than the numbers. Indeed, it provides a kind of template for a model Republican appointee.

In March, Clement led the challenge on behalf of 26 states to the constitutionality of the 2010 health care overhaul, arguing against a federal government that he says is creating commerce in order to regulate it and, in the process, imposing onerous mandates on states and their residents.

This week, Clement will return to the court to argue against the Obama administration and in favor of Arizona’s GOP-backed immigration law, which he contends the state is free to enact despite federal claims of pre-emption. He has won a Supreme Court victory over Latino activists and the Justice Department on behalf of Texas Republicans, who challenged a federal court’s redistricting map last year.

Then there are the lower-court appeals he is pursuing, cases that seem destined to reach the high court soon. The most prominent of them involves the Defense of Marriage Act, or DOMA, which Clement is defending on behalf of the House because the Justice Department has refused.

Another is a defense of South Carolina’s GOP-backed voter ID law, in which he again is taking on the Justice Department over an issue on which Attorney General Eric H. Holder Jr. has taken a personal stand.

The cases represent a clash of constitutional visions between Clement, the Republican lawyer, and President Obama, a former law professor who, as it happens, was Clement’s boss at the Harvard Law Review two decades ago.

Legal Bandwidth

Supreme Court lawyers marvel at the amount of work Clement has taken on, wondering how he can prepare for so many major cases simultaneously. “How much bandwidth does any one person have?” asks Evan Tager, a partner at the Washington law firm Mayer Brown. Tager is known in Washington lawyer circles for giving Clement a nickname that has stuck: the “LeBron James of law.”

Even the justices — many of whom know Clement personally (he clerked for Antonin Scalia and is said to have attended a Green Day concert with Elena Kagan) — have shown a certain deference to his schedule, according to Goldstein. “A lot of the oral argument calendar this term is built around Paul,” Goldstein says. “Where a bunch of the cases are placed this term relates to the fact that Paul was arguing.”

But what has captured more attention is the plainly conservative thrust of his cases. Taken collectively, they show a lawyer taking aim at what Goldstein likes to call the “third, fourth, fifth and sixth rails of liberal politics”: universal health care, gay rights, the Voting Rights Act and, in the court’s final oral arguments of the term this week, immigration.

Clement says he is not pursuing an ideological agenda, although he understands the perception. “The cases fit a certain narrative, put it that way,” he says.

The narrative is clear: Clement is the Republicans’ go-to lawyer, a shadow solicitor general trusted by the GOP to take apart key portions of the president’s agenda. That was evident when House Speaker John A. Boehner of Ohio picked Clement to defend DOMA after the actual solicitor general, Donald B. Verrilli Jr., would not.

That Clement’s considerable legal skills are being trained on Obama’s agenda makes the narrative all the more compelling. (Asked whether he has a personal relationship with Obama, his former classmate, Clement says, “Not on an ongoing basis. I knew him back then. He moved to Chicago. He went off and did this senator-president thing.”)

Like a good lawyer, Clement gives all the right answers when asked about the Republican bent to his work. “I’m not uncomfortable with it,” he says. “I hope that doesn’t mean that somebody who self-identifies as a Democrat doesn’t want to hire me. Like most lawyers, you’d like to just be a go-to lawyer.”

Clement also downplays the notion that he is a crusader for states’ rights, even though he is fighting on behalf of states — and against the federal government — on several fronts this term. Clement says representing states is just a good business strategy, since states often challenge laws at the Supreme Court, and representing 26 states in their challenge to the health care law could lead to more calls in the future. As Clement puts it, “My experience in practice has always been that work begets work.”

Clement says he doesn’t choose his clients. “For the most part, the clients choose you,” he says. And he adds that he’s “fortunate” that his phone keeps ringing.

Pam Bondi, the Republican Florida attorney general who hired Clement to represent the states in their case against the health care overhaul, says good fortune had nothing to do with it. “In my opinion, there’s no better attorney to practice in front of the United States Supreme Court,” she says, adding that Clement did not need to be convinced that there was a case to be made.

What is notable is that some of Clement’s biggest fans are those who regularly take opposing legal positions. While liberals were furious when House Republicans announced that they would defend DOMA on their own, they did not hold it against Clement.

Jonathan Rauch, a Brookings Institution scholar and critic of DOMA, remembers what he thought when he heard about the House GOP’s hire: “Well, damn. They’re smart. They hired themselves the best lawyer they could possibly get.”

Clement’s involvement in the case attracted unusual attention. At the time he agreed to take it, he was with the Atlanta-based mega-firm King & Spalding. But King & Spalding dropped the case under pressure from gay-rights groups. Clement resigned, taking the case with him to his current firm.

He wrote in his resignation letter that he was doing so “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.” Rauch says that only strengthened his image, since “he comes off looking like a guy who stuck to his guns to stand up for his client.”

Elizabeth Wydra, chief counsel for the liberal Constitutional Accountability Center, says any Republican president would be “foolish” not to have Clement “at the top or near the top” of a list of potential justices.

A key question for Clement is whether he will be helped or hurt by his cases this term. “I admire him for taking cases on without worrying about what the consequences will be,” Tager says. “It’s frustrating to see people who plan their whole careers to avoid controversy so that someday they can be nominated to the Supreme Court. But it could turn out that some of these decisions will have cost him.”

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