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The Paul Clement Court


His rise in D.C. was swift. He clerked for the arch-conservative Judge Laurence Silberman and then Antonin Scalia; his first law-firm job was working for Ken Starr. In 2001, after John Ashcroft was tapped to be attorney general, he picked Clement to serve under Olson as deputy solicitor general. By Bush’s second term, Clement had succeeded Olson in the top job.

A solicitor general is charged with defending the actions of the federal government, and this meant that Clement handled some of the Bush administration’s biggest, and most controversial, cases—none more so than those related to the war on terrorism. But unlike so many other Bush-administration lawyers, Clement’s reputation wasn’t diminished by the experience. Quite the contrary. Clement, the Brookings Institution’s Benjamin Wittes says, “was one of a very small number of senior lawyers in the Bush administration who worked on nearly all of the tough counterterrorism issues and came through with their reputations enhanced.” This partly owed to his behind-the-scenes maneuvers. According to former Bush-administration officials, Clement tried (albeit without much success) to get lawyers from the White House and the vice-president’s office, such as Alberto Gonzales and David Addington, to curb their expansive claims about detention and interrogation polices related to terrorist suspects.

But Clement’s public conduct was more determinative. Despite having to vouch for those expansive claims before the Supreme Court in cases such as Hamdan v. Rumsfeld and Rumsfeld v. Padilla, he managed not to alienate his adversaries. Neal Katyal, who argued against Clement (and on behalf of Guantánamo detainees) in Hamdan v. Rumsfeld, recalls Clement treating him with respect inside and outside the courtroom. “He was an absolute prince,” Katyal says. At a 2007 dinner for the Seventh Circuit Court of Appeals, Justice John Paul Stevens hailed Clement as one of the best solicitors general he’d heard argue—a remarkable bit of praise considering that Stevens was the leader of the Court’s liberal wing.

The reservoir of goodwill Clement built for himself was so deep that he survived the type of gaffe that might have ruined another attorney. During the Supreme Court oral arguments for the Padilla case in 2004, Ruth Bader Ginsburg pressed Clement on what would be a check against torture given the Bush administration’s expansive legal claims. “Suppose the executive says mild torture, we think, will help get this information,” Ginsburg asked Clement. “It’s not a soldier who does something against the Code of Military Justice, but it’s an executive command. Some systems do that to get information.” Clement responded: “Well, our executive doesn’t.” Hours later, CBS broadcast the first of the Abu Ghraib photos. But rather than castigate Clement, the Washington legal Establishment—conservatives and liberals—rallied to his defense. “It’s a mark of the bar’s universal regard for Paul that nobody suggested that he lied to the Supreme Court,” Wittes recalls. “Rather, everyone said, ‘I can’t believe the administration let him say that.’ The whole understanding was that he had been ill-used.”

When Clement left government toward the end of Bush’s second term, The Wall Street Journal deemed him “the LeBron James of law-firm recruiting.” The Atlanta megafirm King & Spalding ultimately scooped him up to head its appellate practice in Washington, for a reported price tag of $5 million a year. He quickly proved his worth as a rainmaker, bringing in big-money clients like the NFL. He also continued with his politically charged work, successfully representing the NRA in the landmark 2010 Supreme Court case that struck down Chicago’s aggressive gun-control laws.

But last spring, Clement ran into his first taste of public controversy when he was retained by Boehner and the House Republicans to argue in federal court for the constitutionality of the Defense of Marriage Act—the 1996 law that defines marriage as a legal union only between a man and a woman and which Obama’s Justice Department had refused to defend. Gay-rights groups such as the Human Rights Campaign targeted King & Spalding, even taking their campaign to some of the firm’s clients. Soon, the firm was pressuring Clement to drop the case. When King & Spalding eventually withdrew from the DOMA case (stating that the representation hadn’t been properly vetted), Clement resigned from the firm and immediately decamped to Bancroft, a Washington, D.C., boutique law firm founded by Viet Dinh, a law-school classmate of Clement’s who later served with him in the Bush administration. Bancroft had no qualms about the DOMA representation. “We are blissfully free of existential angst,” Dinh says.

In his resignation letter, Clement wrote: “[A] representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do.” And his decision was hailed in all corners of the legal Establishment (including by Attorney General Eric Holder). Still, even if his fellow lawyers understood the move, the decampment to Bancroft quickly placed Clement on liberals’ radar. Although the firm denies a conservative slant, Dinh, as the author of the Patriot Act, is one of the more ideologically branded lawyers in Washington; and of Bancroft’s eleven associates, five clerked in the chambers of the Court’s Bush-appointed justices, Roberts and Samuel Alito. Add to all this Clement’s other conservative cases, and it seems as if the man who has managed throughout his career to avoid the most inflammatory side of the Republican Party has now suddenly taken it all on his shoulders.


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