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In the pantheon of lawyers who have been blindsided by their clients, it will be hard to top what happened to Paul Clement on April 28, 2004. Clement, then deputy solicitor general, was arguing before the U.S. Supreme Court that Congress, in its post-9/11 authorization of military force, had also in effect given the green light to the military detention of Jose Padilla, a U.S. citizen arrested on American soil. Testing the limits of Clement’s argument, Justice Ruth Bader Ginsburg asked whether the same congressional resolution would authorize “mild torture” of detainees. “Some systems do that to get information,” she said. Clement replied sharply: “Well, our executive doesn’t.” Eight hours later, CBS News began airing the first infamous photos from Abu Ghraib prison, which turned Clement’s confident assertion on its head. It was a moment that could have ruined his relationship with the Court and scuttled his chances for moving up to the position of solicitor general — and beyond. Two years later, Clement candidly describes it as “the worst thing that can happen to you in a case.” A rough day in court, maybe, but it’s tough to see any visible scars. In March 2005, Clement sailed through confirmation as solicitor general of the United States, assuming the role of the Bush administration’s top advocate at the Supreme Court. At age 40, Clement is one of the youngest solicitors general in history, and he has had a full plate, managing much of the Bush administration’s courtroom battles regarding the war on terrorism. Nimble on his feet and smoothly conversational with the justices, Clement has won three-fourths of the 38 cases he has argued since joining the Department of Justice in 2001 (some are still pending). He argues without notes but can rattle off the most obscure citations from memory — even when defending a 1,400-page lower court decision, as he did in the campaign-reform case of McConnell v. FEC. And he has a knack for offering the Court a clear, if narrow, path toward seeing a case his way. “I am so glad he is solicitor general, because he makes my job easier,” Justice Antonin Scalia said during a Georgetown Supreme Court Institute tribute for Clement in April, adding that among his fellow justices, Clement was the “sentimental favorite” for replacing Theodore Olson as solicitor general in 2005. Scalia’s high praise for one of his former clerks may come as no surprise, given Clement’s credentials as a conservative true believer. But true to the traditions of his office, Clement defends liberal legislation with as much zeal as he does Republican policies. His litigating skills and reputation for straight shooting have won him plaudits from across the ideological spectrum. Justice John Paul Stevens ranks Clement close to his all-time favorite high court advocate, Robert Bork. When Sen. Russ Feingold (D-Wis.) introduced Clement, a Wisconsin native, at his confirmation hearing, Feingold compared him favorably with another man who became solicitor general at a young age: 32-year-old William Howard Taft, who went on to become president and chief justice. (The fact that Clement successfully defended Feingold’s campaign-reform legislation, it seems, may have helped.) Just five years ago, Clement was on few radar screens. Now, assuming he leaves government at the end of President George W. Bush’s second term, he can look forward to becoming a top-tier member of the private Supreme Court bar. He may be in line for a judgeship or even a spot on the high court itself. It’s been a stunningly quick rise — and, so far, one unimpeded by the political grenades lobbed his way. Clement is secure enough in his position that when he is asked about the exchange with Ginsburg about torture, he answers diplomatically, but makes it crystal clear that he was not happy about what happened that day. “Part of being a lawyer is taking the facts, including the bad facts, and putting them in context. If you don’t have all the facts you’d like to have, you sort of lose the opportunity to do your job,” Clement says in an interview at his office. These are apparently his first extended remarks on the issue. “There are lots of things, if it had come out the night before, that a lawyer could say to the Court . . . all kinds of things you could do.” But it did not happen that way. “Whether they are directly relevant or really bad atmospheric facts,” Clement says, “when it comes out after you’ve had your chance to talk to the Court and put everything in context, it’s about the worst thing that can happen to you as a lawyer.” So bad, in fact, that Clement disclosed that he considered filing a supplemental brief with the Court explaining his unfortunate answer and supplying the context he would have given if he’d known about the prison abuse beforehand. But he decided to let it be. (He would not detail how he would have explained Abu Ghraib away.) Clement’s concern — and perhaps his salvation — was the special relationship between the Solicitor General’s Office and the Court. Anyone litigating before the high court — or any court, for that matter — can get into deep trouble for shading the truth or hiding important facts during argument. But the Supreme Court expects even more from the solicitor general, who participates in most of the cases the Court hears: a level of judgment and straight shooting that extends to conceding error and losing a case if fairness demands it. “It’s precisely that relationship that helped in this situation,” Clement says. “One of the great advantages you have as an SG is that you get to go up there again and again. One day you are representing what the media would describe as the liberal position, and the next day, the conservative position. They know you want to win all those cases, but they also know you value your ongoing relationship with the Court more than winning any of those cases. So the representation was made, and then this came out, and it was pretty easy to conclude, I think, that there was no bad faith.” Clement speaks more guardedly about his mixed record in the war-on-terrorism cases. The Supreme Court balked at the Bush administration’s view that enemy combatants and Guant�namo detainees had few if any due-process rights. In a speech at Baylor University in September, Clement said his office had the task of defending policies made by other parts of the government: “We focus our attention on the legal issues and make judgments about whether or not we have a valid legal argument to make — not necessarily whether we have a winning legal argument to make.” At his office, Clement is asked to translate that comment; did he mean that the Bush administration handed him some dogs, some cases that were impossible to win? “I wouldn’t say that, but some cases are more challenging, some less so,” he replies. Clement also won’t say if he disagreed with the administration’s strong executive power play in the detainee cases. It is true that once the cases reached the solicitor general’s desk, things happened to soften the government’s position. New procedures for reviewing the status of Guant�namo detainees were announced on the day the government’s brief in Rasul v. Bush was due at the Court. Padilla was allowed to see his lawyer just before the government’s brief in that case was due. And while the 2006 case Hamdan v. Rumsfeld was pending, the rules for military commissions changed. A recent article in the Harvard Law Review by Neal Katyal, Clement’s victorious adversary in Hamdan, detailed this “institutional choreography” and suggested that Clement played a part in it. But Katyal, a Georgetown University Law Center professor, said the last-minute changes actually played into his argument that the administration’s ever-changing detainee policies were dictated by whim, not law. In the interview, Clement does not distance himself from the detainee policies he defended. But he does convey some of the difficulty the novel litigation posed for the government. When post�9/11 detentions spawned the first wave of civil-liberties lawsuits, Clement says, the department was swimming in uncharted waters. “We hadn’t had to deal with an attack on our soil in more than 50 years,” he says, and many of the precedents that later became crucial, such as Johnson v. Eisentrager, were “not the cases you usually think about.” ( Eisentrager, a once-obscure 1950 decision, held that German war criminals in a U.S. prison in Germany had no right of access to U.S. courts.)
War on Terror ArgumentsA selection of post-9/11 Supreme Court cases argued by Paul Clement
Hamdan v. Rumsfeld: Clement lost this case on whether military commissions for Guant�namo Bay detainees are authorized under U.S. and international law.Rumsfeld v. Padilla: In a 5-4 decision, the Court agreed with Clement’s argument that a U.S. citizen captured on American soil and designated as an enemy combatant can be detained by the military.Hamdi v. Rumsfeld: The Court upheld the right of a U.S. citizen who was captured overseas and detained in the United States as an enemy combatant to contest his detention in U.S. courts. Clement argued against that right.

The Court’s dynamics were different in past wars, too. The late Chief Justice William Rehnquist, in his book All the Laws but One, noted that through history, the Court has typically ratified the executive branch’s actions while war was under way — think Korematsu — and then pulled back and tidied up the mess after the war was over. But the current war on terrorism, with no clear ending point, “confronts you less as an ongoing matter,” Clement says, perhaps giving the Court more license to defy the executive. Combine that with the fact that since World War II, the high court has become much more of a rights-embracing body, and the administration seems to be starting at a disadvantage. Still, in retrospect, it is fair to wonder whether Clement and Olson overplayed their hands with a strong executive-power argument. Clement deflects such criticism. Of course, knowing now how the Court came down on the issues, he says, “we could argue it differently.” But going in, he insists the administration had strong precedents on its side. “We had done pretty well in the lower courts,” he adds. Clement does acknowledge that he did not anticipate the pivotal role Stevens played in the detainee cases. Although war-powers precedents might have been new to department lawyers, they were deeply familiar to Stevens, who grappled with the issues as a young law clerk to Justice Wiley Rutledge in 1948. That year, Rutledge dissented in Ahrens v. Clark, arguing powerfully that the writ of habeas corpus should not be constricted in the case of wartime detainees held outside the United States. Echoes of that dissent could be found in Stevens’ powerful decisions in Guant�namo cases that went against Clement. John Yoo, who clerked alongside Clement for Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit and later took a beating as an architect of the administration’s most disputed war on terrorism legal policies, says Clement’s role was pivotal — and positive. Clement was then-SG Theodore Olson’s “right-hand man,” says Yoo, who defends the policies in a new book, War by Other Means. “He argued the cases on appeal in the Fourth Circuit, and was ultimately responsible for the strategy and the substance of the arguments. I watched him argue brilliantly before circuit courts. The United States could not have had a more effective or intelligent advocate during a difficult time.” BUFFER ZONE It would have been hard to predict Clement’s central role in the legal war on terror even a year before 9/11. He had never even argued a case before the Supreme Court before joining the Solicitor General’s Office as the so-called political deputy, and some in the office were suspicious that he was a John Ashcroft disciple sent to keep conservative discipline within their often-independent ranks. In fact, as others who have held the post since it was created in 1982 — including now-Chief Justice John Roberts Jr. — have found out, political deputies are not so much ideological enforcers as political buffers. They are the ones who tell an angry White House aide why the government cannot take a legal position before the Supreme Court that would help the president win points with a certain constituency. But Clement certainly had conservative credentials. As an undergraduate at Georgetown University, Clement had internships in the Reagan White House and in the office of a Republican senator. He earned a master’s degree in economics at Cambridge University, and he jokes that he might have become an economist if the professor he had hoped to study with had not been on sabbatical. But Clement acknowledges that “law school was on my radar screen for a long time.” So the son of an accountant and a stay-at-home mom went off to Harvard Law School, where he became Supreme Court editor for the Harvard Law Review and graduated magna cum laude. Then came the Holy-Grail clerkships for any young conservative — Silberman and Scalia. The next stop was Kirkland & Ellis in Washington, D.C., where he arrived on the same day that Kenneth Starr left to head the Whitewater investigation. After two years at Kirkland, Clement returned to the public sector, serving as chief counsel to Ashcroft’s Judiciary subcommittee during Ashcroft’s days as a Missouri senator. It was there that he realized that litigation challenged him more than policy. Clement went from Capitol Hill to King & Spalding to invigorate its small appellate practice. “He was very entrepreneurial, very interested in heading an appellate practice, and he immediately displayed his acumen to everyone in the firm. We’d love to have him back,” says Wick Sollers, the firm’s D.C. managing partner. Clement had a range of clients at King & Spalding, and he worked with the conservative American Center for Law and Justice on a brief on behalf of Florida voters supporting Bush in the 2000 case Bush v. Gore. Clement did not actually argue at the Supreme Court during his days at the firm, but Sollers recalls a 4th Circuit case, United States v. Barile, in which a brief by Clement succeeded in reversing the conviction of a firm client on a charge of filing a false statement with the Food and Drug Administration. “It was the best brief I’ve ever seen,” Sollers says. When Ashcroft became attorney general, he soon tried to get Clement back into his fold. He named Clement as deputy solicitor general even before Olson was confirmed as SG. “At the time he joined, he was younger than all but one or two of us in the office, and he was not well known as an appellate specialist,” recalls David Frederick, then an assistant in the office and now partner at Kellogg, Huber, Hansen, Todd, Evans & Figel. But he quickly won the staff over, says Frederick, by engaging the lawyers in informed debate. When Clement disagreed with colleagues, Frederick adds, “he had a very warm smile.” Clement usually got his way. Olson boasts about Clement as a prize catch for the government. He recalls checking out Clement with the conservative street — Silberman, Scalia, and Ashcroft. They raved about him, portraying him as someone in the mold of none other than Roberts — then a top-tier Supreme Court advocate with Hogan & Hartson. Clement quickly set a “24-carat gold standard” for advocacy and integrity, Olson says. So in 2002, when Yoo went to Olson to urge him to organize a task force to get a handle on the impending wave of post�9/11 litigation, Olson turned to Clement. “It didn’t take great thought to think some of these issues would get to the Supreme Court,” says Clement, “and it made sense that we should be making pretty much the same arguments.” Soon Clement was extending his portfolio beyond the Supreme Court, arguing terrorism cases at the circuit and district court levels — which is beyond an SG’s normal bailiwick. By April 2004, three separate cases — Rumsfeld v. Padilla, Rasul v. Bush, and Hamdi v. Rumsfeld — converged on the Court in the same argument cycle, along with another high-profile case, Cheney v. United States District Court, now best known for Scalia’s refusal to recuse himself even though he’d gone duck hunting with the appellant, Vice President Dick Cheney. Olson argued two of the four cases, and Clement argued two — Padilla and Hamdi. CAMPAIGN SPEECHES The standing joke at the office was that the terrorism cases were Clement’s “day job,” while he tended to the rest of the deputy SG’s docket at night and on weekends. And then there was his family — his wife and three young boys. “I tried very hard not to neglect the home front,” he says. “I’m painfully aware of how fast [their childhood] can go by.” But if you ask Clement what was his biggest and most memorable litigation challenge, he’ll quickly answer McConnell v. FEC, the mammoth defense of the McCain-Feingold campaign finance reform law in 2003. It was an odd case from the outset. When Bush signed the bill in 2002, he said it “presented serious constitutional concerns,” and Republican Sen. Mitch McConnell of Kentucky raced to the courthouse to challenge it as a First Amendment violation. Yet it fell to Clement to defend it, and he did so with vigor. But with more than a dozen principal parties and roughly 20 separate First Amendment issues — each of which could have warranted full briefing on its own — it was a case-management nightmare: “Our first job was to get it into manageable form for the Court.” Groups challenging the law filed 800 pages of briefs, but, Clement says, “it would have been suicide” for the government to respond in kind. The government summarized its case in 150 pages. For argument, then-SG Olson took on the defense of Title I, the law’s soft-money ban; Clement prepared to defend Title II, the issue of advertising regulations — along with the entire rest of the law, affectionately called the “cats and dogs.” “I knew that 90 percent of the questions would be about Title II,” Clement recalls, “but 10 percent could be about everything else, and I had to know it all. �I haven’t thought about that’ isn’t a good answer at the Supreme Court.” Clement gave a forceful defense of the statute, even pushing back more than once against Scalia, his former boss, who is suspicious of all campaign-finance restrictions. At one point, when Scalia lamented that each new campaign-reform law leads to restricting more and more political speech, Clement said, “With all respect, Justice Scalia, that’s a formula for surrender in response to what is clearly a problem that Congress has been wrestling with, for the most part successfully, for 100 years, which is the corrosive and distorting effect of corporate wealth on candidate elections.” The government won, with the Court upholding virtually all of the legislation. Scalia, however, dissented on Title II and disagreed with most of the rest of the majority’s approval of the law. Defending the McCain-Feingold law does not seem to have cost Clement any points among conservatives who, like Scalia, view the law as big-government infringement on free speech, not to mention an attack on Republican Party fund raising. Clement gave opening remarks at the Federalist Society’s annual convention in November and noted that the theme of the conference was “limited government.” Recalling his defense of McCain-Feingold as well as the administration’s crackdown on medical marijuana, Clement said, almost sheepishly, that it was “a little rich” for him to be addressing the society. It was a disarming concession, and Clement went on to recite more obscure cases in which he had defended narrow interpretations of federal law in ways that limited the reach of government. Clement also pointed with pride to one of his office’s smartest judgment calls: staying out of Kelo v. City of New London, the 2005 Court ruling that triggered nationwide protest by upholding the use of eminent domain by local governments to transfer property from one private owner to another. Both sides had wanted the government to file an amicus brief, and Clement could have easily articulated a federal interest in supporting the city of New London, Conn., because federal agencies often provide financial aid to local redevelopment projects that include such eminent-domain transfers. “Ultimately, we decided to sit this one out,” Clement told the society, adding that the reaction to the Court decision has been salutary. Instead of constitutionalizing the issue, the Court gave states room to legislate, and more than 30 states have since passed bills or ballot initiatives that limit eminent-domain powers. Society members applauded Clement. Making winning concessions in court is another talent of Clement’s. In the 2005 case Rumsfeld v. FAIR, Clement had the task of defending the Solomon Amendment, which threatened to cut federal funds to any university that did not give equal campus access to military recruiters. Most of the legal academy was arrayed against him, arguing that the law compelled law schools to endorse the military’s policy against admitting homosexuals. To blunt free-speech concerns during oral argument, Clement went beyond his own brief to assure the justices that universities can display strong displeasure with the military policy, so long as they grant equal access. “Concretely, they could put up signs on the bulletin board next to the door; they could engage in speech; they could help organize student protests,” Clement said. Justice Anthony Kennedy was incredulous. “You mean, they could organize a student protest at the hiring interview rooms, so that everybody jeers when the applicant comes in the door, and the school could organize that?” Yes, said Clement: “That would be equal access.” At which point, Scalia glared at Clement and said, jokingly, “You’re not going to be an Army recruiter, are you?” It was a memorable moment, and when Chief Justice Roberts wrote the opinion, he quoted Clement’s assurances prominently, which helped cement the Court’s unanimous ruling in favor of the law. The law professors turned out not to be much of a match for Clement. But sooner or later, any discussion of Clement’s oral argument talents turns toward his notes-free approach. Kellogg, Huber’s Frederick, who has written a book on appellate advocacy, says Clement’s trademark practice of not using notes helps him maintain a conversational style with the Court: “He doesn’t get distracted looking for information. He has a very good rapport with the Court.” Clement, who is often asked about it, says that it’s no big deal: “I really don’t think any lawyers use their notes up there; it’s just a question of whether they bring the notes to the podium.” He’s being a shade too modest; less-confident lawyers bring notes with them — and refer to them often. He stopped using notes as a way of honing his skills as a high school debater in Cedarburg, Wis., and in college at Georgetown. Some of the debates were impromptu — he would suddenly be assigned to argue that Bugs Bunny would be a better replacement for the latest James Bond actor than the Road Runner — and notes would have been useless. “In �boys’ extemporaneous speaking’ class — I hope they’ve changed the name by now — if you used notes, you weren’t going to win,” he says. Arguing without notes even wins the admiration of Clement’s older brother Bret — the kind of grudging compliment only a brother can supply. “He’s obviously fairly bright,” says the older Clement, an Indianapolis-based lawyer with the firm Ayres Carr & Sullivan. “I don’t think I could do that, and I’m not exactly a dummy.” Does Bret Clement, 52, think his kid brother Paul could go on to sit on the Supreme Court? “He’s awful young to be on the Supreme Court,” Bret says dubiously. “He’s awful young to be solicitor general, too.”


This article originally appeared in The American Lawyer , an ALM publication. Tony Mauro can be contacted at [email protected].

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