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The Paul Clement Court


This may present an impediment to what is widely assumed to be Clement’s ultimate goal: a seat on the Supreme Court. To be sure, Republicans want him there. “It’s my aspiration, and expectation, that Paul will serve not only on a bench but the bench,” Ashcroft says. “He’s their great white hope,” one prominent Court watcher adds. “They’re praying Romney gets elected, Ginsburg dies, and they get Clement.” And for a while, it looked like Clement, should he be nominated by a Republican president, would face a confirmation process as smooth as the one faced by the legal heavyweight to whom he’s most frequently compared, John Roberts. But Roberts was much more careful not to take controversial cases during his years as a top Supreme Court lawyer. Clement has done the opposite. “He’s touched the third, fourth, fifth, sixth, and seventh rails of liberal-Democratic politics,” Tom Goldstein says of Clement’s involvement in the Obamacare, immigration, gay-marriage, gun-rights, and Texas-redistricting cases. “Paul is going to be easy to caricature, incorrectly, as someone with a hard-right agenda.”

It’s a caricature that Clement is already trying to combat. “It happens to be that some of my [current] big, high-profile cases have a certain skew to them, but other cases that I’ve taken in the past had the opposite skew to them,” he tells me, pointing to his recent representation of a class of inmates who successfully sued California to reduce prison overcrowding and his defense, while in the solicitor general’s office, of the McCain-Feingold campaign-finance-reform law. He refuses to reveal his personal views about gay marriage, or about any of his other politically charged cases, and insists that he is motivated solely by a lawyer’s duty. “I don’t relish having a case where a gay friend or a sick friend or somebody with a preexisting medical condition is rooting against me,” he says when pressed. “On the other hand, it’s just kind of inherent in the nature of the job.”

One way for Clement to demonstrate his agnosticism would be to represent Texas in Fisher v. University of Texas, which seeks to overturn the university’s affirmative-action policy and which the Supreme Court recently agreed to hear. It would be a natural fit, since he’s already representing the state in the redistricting dispute. Defending affirmative action would certainly reshuffle his reputation. “If Texas is smart, it’ll go for Paul,” one prominent liberal lawyer who’s friendly with Clement says, “and if Paul’s smart, he’ll pursue the case.”

But when I ask Clement if he might take the case, he says it’s doubtful. “I haven’t been asked to, put it that way,” he says. Were he to sign on, such a move could harm Clement’s standing with conservatives. After all, Maureen Mahoney, a Republican lawyer who served as deputy solicitor general under George H.W. Bush, was once considered by Republicans a top candidate for a Supreme Court appointment. But then she represented the University of Michigan in its affirmative-action case, and that was the end of her Supreme Court hopes.

It’s the last day of February, and Clement is standing in the well of the Supreme Court, peering up through his glasses at the nine black-robed justices seated behind a high bench. On this morning, the Court is hearing Armour v. City of Indianapolis; Clement is representing Indianapolis in an equal-protection case brought by a group of its residents who are angry that, while some of their fellow Hoosiers had their sewer taxes forgiven, theirs weren’t. Even for seasoned attorneys, and even with unsexy cases like this one, the Supreme Court is an intimidating atmosphere, but Clement betrays no nerves. It’s his 57th oral argument before the Court. When Justice Samuel Alito interrupts Clement less than 30 seconds into his argument with a question about whether, by forgiving some people’s taxes but not everyone’s, the city was simply choosing the “more politically acceptable” path, Clement has a ready answer. “Well, Justice Alito,” he says, “sometimes things that make policy sense that the public likes also make good-government sense.”

Clement benefits greatly from his personal ease in front of the Court. As a former solicitor general—a position that’s often referred to as the “tenth justice”—he is viewed by the justices as, if not a peer, then at least as someone who breathes the same air as they do. They joke with him during arguments (including over the huge paycheck he received at King & Spalding). They hobnob at the same legal conferences, as Stephen Breyer did with Clement a couple of summers ago in Paris. They even see him socially: Not long before Elena Kagan was appointed to the bench, she went with Clement to a Green Day concert. More controversially, Bancroft co-sponsored a Federalist Society dinner that was attended by Scalia and Clarence Thomas on the same day the justices met to decide whether to hear the health-care case.


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