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.
“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.
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.
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.
“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.
“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.”
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.
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.”
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