Paul D. Clement is a lawyer standing at the center of three blockbuster Supreme Court cases that could make this term one of the most politically significant in years.
Clement, a solicitor general during the George W. Bush administration, will serve as the lead counsel for a challenge brought by 26 states to the Obama administration's health care law. He is representing Arizona as it defends its controversial immigration law, and represented the state of Texas in a voting rights case that was argued in early January.
While it is not unusual for a top notch Supreme Court advocate to make frequent visits to the Court in one term, it is almost unprecedented for one lawyer to handle so many high-profile, politically divisive cases.
By the end of this term, Clement will have appeared before the justices 60 times during his career.
"It does get easier, but it never gets easy," he says of the experience. "If I ever stop getting nervous about arguing a Supreme Court case, I am going to find something else to do. You absolutely need to be on the top of your game to argue before this Court."
Clement says the challenge to the health care law brought by the Republican governors and attorneys general of 26 states, a small business group and several individuals has been the most difficult case to juggle this term. The justices will target four aspects of the law and the Court has scheduled a total of 5 ½ hours of arguments over three consecutive days in March.
Central to the issues before the Court is the individual mandate, which requires everyone to have health insurance or face a penalty. And if that's not constitutional, can the rest of the act stand, or must it be struck down in its entirety? Then there's the question of whether challenges should even be heard now since the mandate doesn't take effect until 2014. Another issue concerns the forcing of states to pay the extra Medicaid costs the law stipulates.
"Generally, if you have multiple cases in different sittings, the briefing schedules will not overlap very much," Clement says. "But the health care case is the equivalent of having four cases all in the March sitting."
At 45, Clement's name often tops the list of potential Supreme Court nominees in future Republican administrations. While he is known for his Supreme Court practice, he is no stranger to the lower courts, where he is currently defending the Defense of Marriage Act (DOMA) that defines marriage as a union of a man and a woman.
In general, taking a case from the lower courts to the Supreme Court, as Clement often does, requires a shift in strategy.
"In the lower courts you spend a lot of time talking about what a Supreme Court decision means. In the Supreme Court, you are likely to be talking to the author. As a result, the discussion is going to turn less on what a particular sentence means and more on broader principles of constitutional law," he says.
Clement's style in the Supreme Court is different from less seasoned practitioners who respond to questions from prepared notes, often giving canned answers. Clement argues note-free and engages in a conversation with the justices, carefully targeting their concerns.
His effective style was on display during arguments in the Texas voting rights case. Clement was defending a set of redistricting maps drawn by the Republican-dominated state legislature. Latino groups are challenging the maps, arguing they don't properly reflect Latino population growth in the state.
Clement was facing so many aggressive questions from Justice Sonia Sotomayor, that at one point Chief Justice John Roberts intervened, asking her to allow Clement to finish his answer.
Pressing on, Sotomayor implied that in one district in El Paso County, legislators had drawn a map in an unnatural and illegal manner.
"The enacted map," she said, "created an antler-type district, a head and two unconnected antlers on top -- nothing tying them together." As the audience envisioned a deer head, Clement was quick to respond.
"You may be right," he said. "There may be a problem in El Paso." But he pointed out that the legislators hadn't acted unreasonably because they adhered to a similar drawing that had been approved by the Department of Justice after the 2001 census. Then he circled back to Sotomayor's deer analogy. "The deer had one antler and an antenna," he said.