4:06pm

Fri March 23, 2012
Judging The Health Care Law

The Legal Wunderkind Challenging The Health Law

Paul Clement is, quite simply, a walking superlative. A wunderkind who at age 34 became deputy solicitor general and then was promoted to the top spot, solicitor general of the United States, becoming the youngest person to hold that post in more than a century. Now 45, he has argued an astonishing 57 cases before the Supreme Court, more than any other lawyer since 2000. And next week, he will lead the challenge to the Obama health care overhaul, in the Supreme Court.

Like Donald Verrilli, the man he will be arguing against, Clement has won admiration and respect across the political spectrum for his integrity and skill. But when other lawyers speak about Clement, they just gush. He doesn't use notes when he argues; he seems to remember the most minute details of a case, down to the page numbers. His tone is conversational; he seems to enjoy the back and forth with the justices so much that he actually smiles.

"I think he is the pre-eminent advocate in his generation," says Neal Katyal, who served as acting solicitor general for a year in the Obama administration.

Clement is so pre-eminent, in fact, that he is widely viewed as a top choice for a seat on the U.S. Supreme Court in a Republican administration. That prospect, however, is tempered by a client list that looks to be straight out the Republican Party platform.

Clement was born and raised in Cedarburg, Wis., the youngest of four children. His father was the chief financial officer of a company; his mother stayed home and did so much volunteer work that Clement laughingly points out she is "the longest-serving member of the Ozaukee County traffic safety committee."

After a stellar academic career, Clement went on to what has been termed "the holy grail of clerkships," first for Judge Laurence Silberman, a conservative icon on the U.S. Court of Appeals for the District of Columbia, and then for conservative Supreme Court Justice Antonin Scalia.

After a brief stint in private practice, he decided to pursue a life in public service. His first stop was a job in the U.S. Senate, where he was recommended to a junior member of the new GOP majority. The senator, John Ashcroft, was looking for a chief counsel for the Constitution subcommittee he became chairman of when the Republicans won control of the Senate.

Clement admits he was intimidated when he went for his interview. He had no real political credentials. "I really, sort of would describe myself as more of a law geek," he says.

But Ashcroft says he wasn't concerned about Clement's political credentials — he wanted a legal superstar.

"I think that the important thing in public life is to draft for talent," Ashcroft says, and he saw Clement as a Michael Jordan-like draft pick. Clement worked for the senator for three years on everything from the bipartisan Digital Millennium Copyright Act to the impeachment of President Clinton. By the end of the impeachment, Clement had figured out that he really liked working on constitutional issues, as opposed to counting legislative votes.

So he went back to private practice, only to be tapped again for public service in 2001, when Ashcroft became attorney general in the Bush administration. Initially, Ashcroft wanted Clement to head the Office of Legal Counsel, which is charged with telling the president which actions are within his power and which ones are not.

But as it turned out, the White House had another candidate, and Ashcroft instead slated Clement to be deputy to the new solicitor general, Theodore Olson. Olson checked out Clement, got rave reviews, and now says it was his "lucky day."

It was probably Clement's lucky day too, since the job he missed out on turned out to be in the vortex of formulating post-Sept. 11 anti-terrorism policies. Ashcroft, for his part, still mutters that President Bush could have avoided a lot of "heartache" had he taken his initial legal advice from the sensible and tough-minded Clement instead of the man the president chose, Jay Bybee.

The job Clement got as deputy solicitor general is known informally as the "political deputy" position. The three other deputies are career civil servants. The political deputy's job is to act as a buffer between the White House and the generally apolitical solicitor general's office, ensuring that the president's legitimate policy objectives are taken into consideration — often on hot-button issues like abortion, affirmative action or gun rights — while ensuring that the government's institutional objectives are protected from political pressures. By all accounts, Clement did that masterfully.

"When he was in the government, he really was, even though he's thought of as being quite conservative, an absolutely fair arbiter," says Tom Goldstein, the founder of SCOTUSblog, the leading Supreme Court blog. "There were a bunch of times when he was pushing the civil rights division of the Bush Justice Department to take a more moderate/centrist, even more liberal position than it nearly ever would have otherwise."

For Clement, his new job also made him No. 2 in arguing the government's cases before the Supreme Court. In 2001, however, he was a novice, and he is frank to say he was scared silly as he waited to begin his first argument. His parents had come from Wisconsin to watch, he remembers, and "Somebody said, 'Well, isn't it going to make you nervous that your parents are there?' and I said, 'How could I be any more nervous than I already am!' "

As soon as he began his argument, though, Clement felt himself settle into a groove. The legal geek had become the handsome prince of Supreme Court advocacy.

He admits his worst moment as an advocate was in one of the war on terrorism cases after Sept. 11. The issue was whether the president had the power to order the indefinite detention, without any court hearing, of an American citizen seized at O'Hare airport in Chicago and suspected of terrorist activities.

As the justices probed just how much unilateral power the president has under the Constitution, Justice Ruth Bader Ginsburg asked whether the president has the power to order prisoners to be subjected to "mild torture" in order to get information. Some systems of government allow that, she observed.

"Well, our executive doesn't," Clement shot back. "You have to recognize that in situations ... where the government is on a war footing, that you have to trust the executive."

Eight hours later, CBS News released the infamous and gruesome Abu Ghraib prison photos, showing U.S. military guards abusing naked prisoners in Iraq.

"It was a very difficult experience for an advocate," Clement recalls. "It was a very horrible, horrible fact, but if you don't know the bad fact, you can't put it in context."

Clement had been blindsided. It was a moment that played over and over again on the public airwaves, and probably in the justices' minds too.

When Clement did know some bad facts, he usually managed to persuade the Bush administration to take action in the nick of time — shortly before two terrorism cases involving American citizens were to be argued before the Supreme Court, for instance, the government finally, after years of lawyerless detention, allowed the attorneys for the defendants to talk to their clients.

Perhaps the most spectacular skill that Clement demonstrates in oral argument is his command of facts, quotes, statutory provisions and the like, down to the page numbers, all without notes. Many experienced advocates bring notes to the lectern and never refer to them. Clement learned to discard even that crutch practicing for the debate team in high school and college.

So, does he have a photographic memory? No, says Clement. Even a daunting case appendix of 500 pages or more contains only a few things that matter.

"In a sense," he says, "the skill is to figure out what in that 500-page appendix the justices are going to care about."

His peers say Clement is incredibly quick at digesting information. Goldstein, also a Supreme Court advocate, noted this quality when he recently hired Clement to argue a case for a client.

"In the course of two meetings, he was able to internalize and articulate better than we had been able, issues that we had spent months working on," Goldstein says. "He just has the capacity to distill."

Clement says preparation for oral argument takes two solid, uninterrupted weekends of work, or 114 weekends away from family so far. He tries to make up for it, sometimes leaving work early to go to sports events or to pick up his children at school.

"You just have to make time for it and make it a priority because if you don't, you're going to lose your shot," Clement says.

Clement's wife, Alexandra, a Harvard Business School graduate, was the primary earner in the family early on, but for now is raising their three boys, ages 13, 11, and 9.

A lot of young lawyers are interested in public service, Clement observes, but if they put on the golden handcuffs, take on a huge mortgage and rich lifestyle, they can't afford to leave the private sector.

"We kind of made our choices with the idea that you have to be in a position where you could do this and still be on one government salary," he says.

Upon leaving public service, Clement returned to his old firm, King & Spalding, where he built a prosperous appellate practice. Then last year, he agreed to represent congressional Republicans in defending the Defense of Marriage Act — DOMA — the federal law that defines marriage as between a man and a woman.

Although he initially cleared taking the case with the firm, he was soon asked to drop it because of complaints from both clients and some partners. He refused and moved to a tiny D.C. law firm headed by two partners who had been colleagues at the Bush administration Justice Department.

Clement's refusal to abandon his client won widespread praise across the political spectrum in the legal community. Even Justice Elena Kagan praised his "professionalism and honor," saying that Clement's critics "misunderstood the traditions and ethics of the legal profession."

Indeed, as Clement is quick to point out, he has just as zealously represented liberal causes in some cases. For instance, he argued that the victims of unscrupulous prosecutors should be permitted to sue for damages — an issue he ultimately lost. He also argued that California's prisons are so overcrowded that prisoners are subject to cruel and unusual punishment. He won that case, resulting in an order to release tens of thousands of nonviolent prisoners.

But, for the most part, Clement's caseload is a catalog of conservative causes.

In 2010, he won a major gun rights case for the National Rifle Association. This term, in addition to his attack on the health care law, Clement has already won a redistricting battle for the state of Texas and its Republican Legislature, and in April he will defend Arizona's aggressive immigration law.

At the same time, in the lower courts, he has a bunch of cases that very likely will end up at the Supreme Court. He is defending voter ID laws in Southern states against challenges from the Justice Department, challenging the constitutionality of President Obama's recent recess appointments, and arguing in support of DOMA.

All of this makes him a prime candidate for appointment to the Supreme Court some day when there is a vacancy and a Republican president. But all of this also makes him a target if that happens.

"He really has touched the third, fourth, fifth and sixth rails of liberal politics," says Supreme Court advocate Goldstein. "Regrettably, he's going to be too easy to caricature." Goldstein believes that with "all fairness" having "flown out the window" in modern confirmation politics, Clement would likely be defeated.

Clement, however, still sees the world as a rational place, where good lawyers are fully capable of arguing either side of a case, and the system depends on them doing that.

"I do hope, at least for the profession, that it doesn't become disqualifying just to take on kind of unpopular clients," he says, "because I think they're the entities that most need good representation in our system."

Copyright 2012 National Public Radio. To see more, visit http://www.npr.org/.

Transcript

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It's ALL THINGS CONSIDERED from NPR News. I'm Audie Cornish.

ROBERT SIEGEL, HOST:

And I'm Robert Siegel.

Two of the nation's most prominent lawyers are preparing to argue one of the one of the Supreme Court's most prominent cases. Next week, they'll face the justices for six hours of arguments on the health care overhaul.

Yesterday, NPR legal affairs correspondent Nina Totenberg profiled the government's lead advocate, Donald Verrilli. Today, she introduces us to the opponent's lead advocate, Paul Clement.

NINA TOTENBERG, BYLINE: Paul Clement is a walking superlative, a wunderkind who, at age 34, became deputy solicitor general and after four years was promoted to the top spot, becoming the youngest person to hold the position in more than a century. Now 45, he's argued an astonishing 57 cases before the Supreme Court, more than any other lawyer since 2000.

Like Donald Verrilli, the man he'll be arguing against next week, Clement has won admiration and respect across the political spectrum for his integrity and skill. But when other lawyers speak about Clement, they simply gush. He doesn't use notes when he argues; he seems to remember the most minute details of a case, down to the page numbers. His tone is conversational. He seems to enjoy the back and forth with the justices so much that he often smiles.

Neal Katyal, who served as acting solicitor general for a year in the Obama administration, makes an appraisal that is hardly unique.

NEAL KATYAL: I think he's the pre-eminent advocate in his generation.

TOTENBERG: So pre-eminent, in fact, that Clement is widely viewed as at the top of any short list for nomination to the Supreme Court in a Republican administration. That prospect, however, is tempered by a client list that looks to be straight out the Republican Party platform. More on that later.

Paul Clement was born and raised in Cedarburg, Wisconsin, the youngest of four children. His father, an accountant, his mother, a stay-at-home mom and community volunteer.

After a stellar academic career, Clement went on to what has been termed the Holy Grail of Clerkships. First, for a lower court conservative icon, Laurence Silberman and then for conservative Supreme Court Justice Antonin Scalia.

After a brief stint in private practice, he decided to pursue a life in public service. First stop, a job in the U.S. Senate in 1995, where he was recommended to a junior member of the new GOP majority. The senator, John Ashcroft, was looking for a chief counsel for the Constitution subcommittee he chaired.

Clement admits he was intimidated. He had no real political credentials.

PAUL CLEMENT: I really sort of would describe myself as more of a law geek.

TOTENBERG: Ashcroft says he wasn't concerned about Clement's political credentials. He figured he could take care of politics. But he wanted a legal superstar.

JOHN ASHCROFT: I think the important thing in public life is to draft for talent. If Michael Jordan is available in the draft, you get the best person you can.

TOTENBERG: And Ashcroft saw Clement as a Michael Jordan-like pick. The young lawyer worked for the senator for three years on everything from the bipartisan Digital Millennium Copyright Act, to the impeachment of President Clinton. By the end of the impeachment, Clement had figured out that he really liked working on constitutional issues, as opposed to counting legislative votes.

So he went back to private practice, only to be tapped again for public service in 2001, when John Ashcroft became attorney general in the Bush administration. Clement became deputy solicitor general, number two in arguing the government's cases before the Supreme Court.

In 2001, however, Clement was a novice. And he is frank to say he was scared silly as he waited to begin his first argument. His parents had come from Wisconsin to watch.

CLEMENT: And somebody said, well, is it going to make you nervous that your parents are there? And I said how could I possibly be more nervous than I am?

TOTENBERG: As soon as he began his argument, though, Clement felt himself settle into a groove. The legal geek had become the handsome prince of Supreme Court advocacy.

He admits his worst moment as an advocate was in one of the war on terrorism cases after 9/11. The issue was whether the president had the power to order the indefinite detention, without any court review, of an American citizen seized at O'Hare Airport in Chicago and suspected of terrorist activities.

Justice Ruth Bader Ginsburg put this question to Clement.

JUSTICE RUTH BADER GINSBURG: Suppose the executive says: mild torture, we think will help get this information? Some systems do that to get information.

CLEMENT: Well, our executive doesn't. You have to recognize that in situations where there is a war - where the government is on a war footing, you have to trust the executive.

TOTENBERG: Eight hours later, CBS News released the infamous and gruesome Abu Ghraib Prison photos, showing U.S. military prison guards abusing naked prisoners in Iraq.

CLEMENT: It's a very difficult experience for an advocate.

TOTENBERG: Clement had been blindsided. And it was a moment that played over and over again on the public airways, and probably in the justices' minds too.

When Clement did know some bad facts, he usually managed to persuade the Bush administration to take preventive action in the nick of time. For instance, on the eve of the argument in two terrorism cases involving American citizens, the government finally, after years of lawyerless detention, allowed the defendants to see their attorneys.

His peers say Clement is incredibly quick at digesting information. Supreme Court advocate Tom Goldstein notes that he recently hired Clement to argue a case for a client.

TOM GOLDSTEIN: And in the course of two meetings he was able to internalize and articulate better than we had been able, issues we had spent months working on. He just has the capacity to distill.

TOTENBERG: Upon leaving public service, Clement returned to his old firm of King & Spaulding, where he built a prosperous appellate practice. Then, last year, he agreed to represent congressional Republicans in defending the constitutionality of the controversial Defense of Marriage Act. Although he initially cleared taking the case with the firm, he was soon asked to drop it because of complaints from clients and partners alike. He refused and moved to a tiny D.C. law firm headed by two partners who'd been colleagues at the Bush Justice Department.

Sticking with his client won widespread praise across the political spectrum in the legal community. Even Justice Elena Kagan praised Clement's professionalism and honor, saying that his critics misunderstood the traditions and ethics of the legal profession.

Indeed, as Clement is quick to point out, he has just as zealously represented liberal causes in some cases. Arguing, for instance, that the victims of unscrupulous prosecutors should be permitted to sue for damages - an issue he ultimately lost. And arguing that California's prisons are so overcrowded that the prisoners are subject to cruel and unusual punishment. He won that case, resulting in an order to release tens of thousands of non-violent prisoners.

But, for the most part, Clement's caseload is a catalogue of conservative causes. In 2010, he won a major gun rights case for the National Rifle Association. This term, in addition to his attack on the health care law, Clement has already won a redistricting battle for the state of Texas and its Republican legislature. And in April, he will defend Arizona's aggressive immigration law. At the same time, in the lower courts, he has a bunch of cases that likely will end up in the Supreme Court, including one on minority voting rights and the Defense of Marriage Act.

All of this makes him a prime candidate for appointment to the Supreme Court some day, when there is a vacancy and a Republican president. But all of this also makes him a target if that happens.

Supreme Court advocate Tom Goldstein.

GOLDSTEIN: He really has touched the third, fourth, fifth, and sixth rails of liberal politics. And so, regrettably, he's going to be too easy to caricature in the world of a later nomination.

TOTENBERG: In the modern world of confirmation politics, Goldstein says, all fairness has flown out the window and he doubts Clement can win confirmation.

Clement still sees the world as a rational place, where good lawyers are fully capable of arguing either side of a case and the system depends on them doing that.

CLEMENT: I do hope, at least for the profession, that it doesn't become disqualifying just to take on kind of unpopular clients, because I think they're the entities that most need good representation in our system.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright National Public Radio.