Paul Clement at Center of Supreme Court's Blockbuster Cases

January 18, 2012 -- 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.

His response was a mixture of his in-depth preparation and his ability to be light on his feet. Sotomayor did not ask him any further questions.

Last June, when the health care case that is now before the Supreme Court was being heard by a lower appellate court, Clement argued against Neal Katyal, who was then serving as the acting U.S. Solicitor General of the Obama administration. Before arguments, the courtroom was tense with anticipation. But Katyal and Clement stood together, hands in their pockets, spending several moments smiling and laughing.

Once the gavel banged, they tried to tear apart each other's arguments.

"Paul Clement is one of the very best oral advocates in the country. He is deeply prepared, engaged, comfortable at the podium, and charming on and off the court. His clients are lucky to have him," says Katyal.

After graduating from Harvard Law School in 1992, where he served for a time on the law review with Barack Obama, Clement clerked for two judges who are considered legal luminaries on the right, Judge Laurence H. Silberman, of the U.S. Court of Appeals for the District of Columbia Circuit, and Justice Antonin Scalia.

"Having served as a law clerk on the Court was tremendously helpful," Clement says in preparing him to argue before the justices. "It gives you an opportunity to see a lot of advocacy and get a sense of what works. "

Clement spent seven years in the Office of the Solicitor General, a division of the Department of Justice charged with government litigation in the Supreme Court. He headed the office from 2005 until 2008. During his tenure in government, he argued cases that included the landmark campaign finance decision, McConnell v. FEC; a decision that expanded the rights of individuals with disabilities, Tennessee v. Lane; and some of the key war-on-terror cases, including Hamdi v. Rumsfeld, Rumsfeld v. Padilla and Hamdan v. Rumsfeld. From there he moved to private practice.

David J. Garrow, a professor at the University of Pittsburgh School of Law who has studied the history of the Supreme Court, says he can't remember the last time one advocate had "quite this stellar a trifecta" of big cases in one term.

"It reflects all the parties' perception that the justices have supremely high regard for Clement," says Garrow. "They similarly have high regard for other practitioners as well, but Clement is right now the man of the moment."

Garrow says it also points to a more recent trend in which a small number of attorneys appear repeatedly before the Court."Over this past 10 to 12 years," he says, "high-profile cases have been argued by an all-star team that truly doesn't number more than 25. I think that reflects the understandable perception by parties of all stripes that the Court itself welcomes and embraces really first-rate representation."

Some say that Clement has become the go-to guy to represent the conservative position in cases that are politically divisive.

Michael J. Gerhardt, of the University of North Carolina School of Law, says that Clement is "moving to the front tier of experienced advocates who tend to specialize in ideologically driven cases."

He says, "Clement is clearly one of the more experienced and well respected litigators, but he also has in his mix of cases an unusually large number of cases that appeal to the conservative movement to reshape Supreme Court doctrine. "

But Lisa S. Blatt of Arnold & Porter, who worked with Clement in the Solicitor General's office, scoffs at the notion that Clement is only tied to conservative causes or only works for Republican Attorney Generals and Governors.

"That's pretty ridiculous," she says. "He has taken a series of high profile civil rights cases that aren't exactly conservative causes."

One such case was Clement's representation of inmates challenging poor prison conditions in California in Brown v. Plata in 2010.

He also represented two ex-prisoners in their bid to seek monetary damages for prosecutorial misconduct in Pottawattamie County v. McGee. And he wrote an amicus brief on behalf of a bipartisan group of former senior DOJ attorneys in favor of a man who spent 18 years in prison and sought to sue a prosecutor's office for suppressing exculpatory evidence. The case was called Connick v. Thompson.

"The work is as varied as it is interesting," Clement says.

Upon leaving the Solicitor General's Office in 2008, Clement was snapped up by the law firm King & Spalding, but left the firm last spring after a controversy. House Speaker John Boehner had hired Clement to defend the Defense of Marriage Act after Justice Department lawyers refused to do so. But Clement's bosses at King & Spalding unexpectedly reversed course and the firm decided to withdraw from the case. Gay and lesbian groups had mounted intense pressure on the firm for accepting the case.

Clement immediately resigned and wrote a scathing letter to the chairman of the firm. Clement said King & Spalding had backed down because the client's legal position was unpopular.

"When it comes to the lawyers," Clement wrote in his letter, "the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism."

Clement said that he "recognized from the outset" that the federal statute implicates sensitive issues "on both sides" but that "having undertaken the representation, I believe there is no honorable course for me but to complete it."

Clement immediately joined two of his former law school classmates at a much smaller firm, Bancroft PLLC.

"I say this as a lefty liberal Democrat," says Garrow. "He did exactly the right thing by insisting that his obligation to represent his client outweighed the politics of the law firm. You couldn't find someone more pro gay marriage than I am but at the same time Clement's behavior professionally was utterly commendable," Garrow says.

Clement says that his experience at Bancroft has been "tremendous". "Lawyers tend to work pretty hard; it is really rewarding to work with your friends, especially people you have known since law school," he says.

He currently lives in Virginia with his wife and three sons, and says that besides his education, and his years as a law clerk, his upbringing in Wisconsin helped to prepare him for Supreme Court arguments.

"A lot of lively debate at the family dinner table growing up probably didn't hurt."