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Paul Clement
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Paul Clement, counsel for the National Rifle Association, right, and Wayne LaPierre, Executive Vice President of the NRA, outside the U.S. Supreme Court on June 28, 2010.
Paul Clement, counsel for the National Rifle Association, right, and Wayne LaPierre, Executive Vice President of the NRA, outside the U.S. Supreme Court on June 28, 2010. Photographer: Brendan Hoffman/Getty Images
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Paul Clement
Paul Clement, partner at Bancroft PLLC and former solicitor general of the United States, poses for a portrait in Washington. In the Supreme Court’s current nine-month term, Clement is arguing seven cases, the most by a private lawyer in a single term since at least the 1970′s. Photo: Christopher Powers/Bloomberg
Paul Clement, partner at Bancroft PLLC and former solicitor general of the United States, poses for a portrait in Washington. In the Supreme Court’s current nine-month term, Clement is arguing seven cases, the most by a private lawyer in a single term since at least the 1970′s. Photo: Christopher Powers/Bloomberg
Paul Clement is poised to make a
deeper imprint on American law this year than anyone without the
title “justice.”
Clement, the 45-year-old attorney at the forefront of the
U.S. Supreme Court challenge to President Barack Obama’s health-
care plan, has become the go-to lawyer for conservatives on the
country’s highest-profile legal fights.
He is making the Republican case against the Obama
administration on illegal immigration, voter-identification
laws, gay marriage and recess appointments, as well as health
care. In January, he won a high court victory for Texas (BEESTX)
Republicans on congressional redistricting.
“For any case before the Supreme Court, Paul Clement has
to be option A,” said Greg Abbott, the Republican Texas
attorney general who hired Clement to argue the redistricting
case and whose state is one of 26 challenging the health-care
law. “Paul Clement is the preeminent lawyer in the country,
especially when it comes to Supreme Court advocacy.”
In the court’s current nine-month term, Clement is arguing
seven cases, the most by a private lawyer in a single term since
at least the 1970s. His biggest fight is the challenge to the
2010 health-care overhaul, the first time the high court has
considered a president’s signature legislative victory during
his re-election campaign.
Clement disclaims any ideological agenda. From his downtown
Washington office last month, the Wisconsin native described
himself as a lawyer driven by the challenge of arguing difficult
cases, rather than a desire to reshape the law.
‘Political Lens’
“I’m not going to deny being a Republican, but I don’t
think that really dictates what kind of cases I’m interested in
taking,” the blue-eyed Clement said, sipping tea in the
conference room of his law firm, Bancroft PLLC, as his gold-
rimmed glasses slipped down his nose. “I really don’t look at
cases through a political lens.”
He can point to his list of cases as evidence. Clement has
represented two wrongfully convicted men seeking to sue
prosecutors and argued in favor of forcing California to reduce
overcrowding in its prisons. The National Law Journal looked at
his caseload before the court’s 2009-10 term and said in a
headline that Clement “embraces liberal clients.”
Even so, his current caseload could be a Republican wish
list, starting with the health-care case scheduled for arguments
March 26-28. Clement will be arguing alongside two lawyers
representing a business trade group opposed to the law and
against U.S. Solicitor General Donald Verrilli, the Obama
administration’s top courtroom lawyer.
Arizona Crackdown
The following month, Clement will try to persuade the nine
justices to uphold Arizona’s illegal-immigration crackdown,
which the Obama administration is challenging.
For some liberals, Clement has become the face of legal
peril.
“He is a man who seems to have decided that he’s going to
devote his career to being the most skilled hired gun for people
who want to ruin the Constitution,” said Ian Millhiser, a
policy analyst at the Center for American Progress Action Fund,
an advocacy group in Washington founded by a Democrat.
That view isn’t universal among Democrats. Justice Elena Kagan, an Obama appointee, praised Clement at a reception last
year just after his resignation from the law firm King
Spalding (1140L). Clement stepped down after the firm dropped another of
his high-profile clients — congressional Republicans supporting
a federal law defining marriage as being between one man and one
woman.
Clement’s Ability
What’s not in dispute is Clement’s ability as a Supreme
Court lawyer. His resume alone puts him in the legal elite. He
worked alongside Obama on the Harvard Law Review, had a
clerkship with Justice Antonin Scalia and served as President
George W. Bush’s top Supreme Court lawyer.
In the courtroom, he argues with a combination of
politeness and doggedness.
“He can handle any topic and he’s as likable as they
come,” said Lisa Blatt, who heads the appellate and Supreme
Court practice at Arnold Porter LLP (1150L) in Washington. “He really
enjoys it up there, and you can see it.”
Clement’s rapport with the justices is similarly easy to
see.
In 2008, while Clement was arguing for limits on civil
rights suits, Scalia mentioned the “bad old days” when the
Supreme Court was quick to rule that people could sue to enforce
federal statutes. Momentarily confused about which previous case
they were discussing, Scalia asked his former clerk when he
thought the “bad old days” ended.
Drawing Laughter
“The bad old days ended when you got on the court, Justice
Scalia,” Clement answered, drawing laughter from the audience.
The line worked, Clement said later, less because it drew
laughs than because it reinforced his argument that the court’s
more recent precedents supported his side of the case.
“Humor for its own sake I don’t think works” in Supreme
Court arguments, Clement said.
It’s not always smooth going. When Clement last month
represented Indianapolis in a dispute about suits over tax-law
changes, he repeatedly clashed with Chief Justice John Roberts
and Justice Samuel Alito. Roberts even showed a flash of
irritation when Clement corrected the chief justice by saying
Indianapolis might have to pay $3 million in refunds, rather
than the $2.7 million Roberts had suggested.
“OK, $3 million,” Roberts said with an exaggerated smile.
Trust and Success
Still, the justices “like him and trust him,” said Blatt,
who worked for Clement when he was solicitor general. “I don’t
think it’s a surprise he’s as successful as he is.”
His success rate is hard to measure, given the court’s
penchant for issuing mixed decisions, and Clement said he
doesn’t tally wins and losses. In perhaps his biggest victory as
a private lawyer, he represented the National Rifle Association
in 2010 and secured a ruling that said states and cities, like
the federal government, must respect gun rights.
In addition to his seven Supreme Court cases, Clement has a
full docket that may eventually land at the nation’s top court.
Clement is helping defend South Carolina’s voter-identification
law against Justice Department claims that it discriminates
against racial minorities.
He is urging limits on the president’s power to make
appointments during congressional recesses, arguing in a case in
federal court in New York that Obama improperly appointed three
new members to the National Labor Relations Board.
‘Enormous’ Pressure
“I don’t know of anybody else who could to it,” said
Theodore Olson, a Gibson Dunn Crutcher LLP (1128L) partner who
preceded Clement as Bush’s solicitor general, serving from 2001
to 2004 with Clement as his chief deputy. “It’s a tremendous
amount of work and an enormous amount of pressure.”
Not all of Clement’s cases are political. He represented
National Football League owners during last year’s player
lockout. In three of his seven Supreme Court cases this term,
his clients are businesses.
Olson likens Clement to Roberts, who was a top Supreme
Court lawyer before Bush appointed him to the bench. Many
observers say the next Republican president might extend that
parallel and appoint Clement to the Supreme Court alongside
Roberts.
“It’d be insane not to consider him,” said Neal Katyal,
who served as Obama’s acting solicitor general and is now a
partner at Hogan Lovells US LLP (1131L). “He’s super-smart. He
understands every lawyer’s trick in the book. Like the current
chief justice, he can see through a lot of stuff and I think
that’s an incredibly powerful trait for a justice.”
Tree-Lined Street
Clement lives with his wife, Alexandra, and three sons on a
tree-lined street in the Washington suburb of Alexandria,
Virginia. They own a two-story, $2.3 million house built in
1769, according to property records.
The son of a company chief financial officer and a
homemaker, Clement grew up in the Milwaukee suburb of Cedarburg,
Wisconsin. The youngest of four children, he had to work hard to
weigh in during lively dinner-table conversations.
“That’s where I probably started honing some of my
debating skills,” he said in an interview at his Washington
law firm, Bancroft PLLC.
He was conservative enough as an undergraduate student at
Georgetown University that he interned for a Republican U.S.
senator, Bob Kasten of Wisconsin, and in President Ronald Reagan’s White House. After earning a master’s degree in
economics at Cambridge University, he followed the path of his
older brother by choosing law school over a PhD in economics.
Across Ideological Lines
Clement argued 49 Supreme Court cases in the solicitor
general’s office from 2001 to 2008, more than anyone else during
that period, making arguments that cut across ideological lines.
He served as Bush’s lead courtroom lawyer on terrorism issues
and defended the 2002 McCain-Feingold campaign finance law.
A 2004 terrorism case, involving a U.S. citizen held in a
military brig in South Carolina, produced a rare low moment for
Clement after he assured the justices that the U.S. didn’t
torture prisoners. Later the same day, the television show “60
Minutes II” aired the first photos of U.S. soldiers abusing
inmates at the Abu Ghraib prison in Iraq.
“Like everyone else, I was shocked by the photos, but I
was also angry,” Clement said later. Had he known about the
photos in advance, he could have put them in a legal context for
the court, he said. “I was deprived of that opportunity to do
the lawyer’s job.”
Dispute With Firm
When Clement returned to private practice in 2008, he chose
King Spalding, an Atlanta-based firm where he had previously
worked. The relationship disintegrated suddenly last April when
the firm came under pressure to withdraw from the marriage case.
Unwilling to drop a client, Clement sought advice from an
old Harvard Law School friend, Viet Dinh, who had recently
started his own firm, Bancroft. Within days, Clement decided to
leave King Spalding and join Bancroft, bringing the health-
care and marriage cases along with him.
In his resignation letter, Clement wrote that “the surest
way to be on the wrong side of history is to abandon a client in
the face of hostile criticism.”
Bancroft carries a Republican tint. The three partners –
Clement, Dinh and Christopher Bartolomucci — are all veterans
of the Bush administration. Five other lawyers at the firm
clerked for either Roberts or Alito, Bush’s two appointees to
the court.
Clement’s Bills
The firm charges as much as $1,020 an hour for Clement’s
services, according to court records. His rate will be lower in
the health-care case because his contract with the states caps
fees at $250,000.
Though tiny by Washington standards, the 13-lawyer firm is
quickly running out of space to accommodate the lawyers hired to
work on Clement’s cases. Clement himself has a makeshift office,
separated from Dinh by a glass wall that splits what used to be
an exclusive corner office.
Clement’s side of the room is full of clutter. Stacks of
paper bury his coffee table, while used mugs and water bottles -
- 10 of them on one afternoon last month — overtake his desk.
The behind-the-scenes mess is at odds with the crispness
both sides expect from him when he argues what may prove to be
the biggest case of his career.
“It’s a great thing that he’s doing the health care
argument,” said Katyal, who argued against Clement on health
care at the appeals court level. “That side of the case needs
to be represented by the best advocate possible, and that’s
Paul.”
To contact the reporter on this story:
Greg Stohr in Washington at
gstohr@bloomberg.net
To contact the editor responsible for this story:
Steven Komarow at
skomarow1@bloomberg.net
Article source: http://www.bloomberg.com/news/2012-03-12/obama-health-care-foe-clement-becomes-republicans-go-to-lawyer.html
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