In January, he argued before the Court, on behalf of Rick Perry, against a Texas congressional-redistricting plan that had been crafted by a federal-district court to protect minority voters. Next month, he’ll defend Arizona’s restrictive immigration law. And then there are Clement’s cases, currently being argued in federal appeals courts, that appear destined to be decided by the Nine—including a defense, on behalf of John Boehner and the Republican House majority, of the constitutionality of the Defense of Marriage Act, and a lawsuit, on behalf of South Carolina, against the Obama administration for blocking the state’s voter-I.D. laws.
“I think a lot of it is just an accident of timing,” Clement says. But a lot of it isn’t. Clement’s career is cresting just as the momentous legal crusades of a radicalized Republican Party are reaching the appellate level. His ability to strip the politics out of a contentious argument, the goodwill he engenders from Democrats, and his chumminess with the justices—these are all qualities that would appear to be anachronistic in contemporary, hyperpartisan Washington. But the case of Paul Clement suggests that, at least in one corner of the capital, they are very much in demand.
Clement disputes this political interpretation. “Look, I get it, I hang out in this town, I understand how people are looking at this case.” We are talking about Obamacare one recent afternoon in his Washington, D.C., law office. “But if you really get down to the legal issue that’s at the heart of it, it’s not really a partisan issue.” Clement insists that his involvement in the case is simply a judicial and intellectual endeavor. “My job is to focus on the legal issues, and I think the legal issues here are fascinating. It’s constitutional law in the finest sense,” he says. “I think that’s part of what the Court tries to bring to these cases—to look at what the constitutional principle is and to tune out the politics of the day.” When I ask Clement if he’s comfortable serving, in effect, as the lawyer for the tea party, he demurs: “It’s not something I would identify with.”
At the age of 45, Clement, who has thinning brown hair and the faintest trace of a midwestern accent left over from his Wisconsin childhood, is already in the upper echelon of the Supreme Court bar. It’s an elite group of lawyers who, much like the justices they routinely argue cases before, conceive of themselves as being Olympian in their detachment from politics. Almost all of them graduated from Harvard or Yale or Stanford law school; clerked for a Supreme Court justice; or worked in the solicitor general’s office. (In Clement’s case, he did all three.) Now, in their private practices, they pride themselves on handling only serious cases brought by serious people in a serious manner; even if their client doesn’t prevail—or, worse, turns out to be on the wrong side of history—that stigma doesn’t fall on the lawyer. John W. Davis, who argued the losing side in Brown v. Board of Education, is still held up as an exemplary Supreme Court advocate.
Nevertheless, despite these lawyers’ contention that they aren’t political animals, they are, of course—and their extrajudicial activities often reflect as much. Ted Olson, the man Clement has supplanted as the top conservative Supreme Court lawyer, was an outspoken critic of Bill Clinton, served on the board of directors of The American Spectator, and helped found the Federalist Society. His legal cases were always assumed to reflect his ideological convictions. (Even now that he is seeking to overturn Prop 8, Olson’s personal support for gay marriage is a major story line in the legal fight.) The unusual thing about Clement is that, while he’s undoubtedly a conservative and a Republican, he has managed to avoid this fate. His persona is rarely conflated with the case he’s arguing.
Clement does not possess the outward trappings of a Washington power player. Although he wears dark suits to his court appearances, he favors khakis and oxfords in his office, to which he often commutes from his home in Virginia by bicycle. (Attention, D.C. drivers: Clement’s the guy in the bright-yellow bike helmet with a Green Bay Packers logo.) When he’s invited to speak at out-of-town legal conferences, he typically takes his wife and three boys; after he’s given his presentation, rather than work the room and schmooze, he’ll join his family at a nearby amusement park. “He just doesn’t do things that upset people,” Lisa Blatt, a veteran Supreme Court advocate and the head of Arnold & Porter’s appellate practice, says. “There’s no edge to him.”
Even as a law student at Harvard in the early nineties, when the school was riven by scorching ideological battles, Clement managed to stake his name in the fight without being of it. He was an outspoken conservative, but much like Barack Obama—who was one year ahead of Clement and who famously owed his election as Law Review president to a faction of conservative students who viewed him as an honest broker—Clement enjoyed a good reputation among his ideological adversaries. When he served as an editor of the Law Review the following year, the publication used its parody issue to mock the work of a murdered feminist law professor on the anniversary of her death. Clement was one of eight editors who ultimately signed a letter apologizing for the incident, and one of the few who escaped opprobrium from other students and faculty.