Paul D. Clement will present an oral argument before the Supreme Court on… (Nikki Kahn/The Washington…)
When Paul Clement stands in front of the Supreme Court’s nine justices to argue a case, the effect is akin to watching a game of speed chess, only speed chess contested on nine different boards against nine relentless players. Clement addresses all the boards at once. He’ll make a rhetorical move on one justice here, only to find another skeptical justice requiring attention over there — he has arguments tailored for the court’s fence-sitters especially.
If the justices have anything in common during an oral argument at the court, it is a willingness to express in-your-face sarcasm for a lawyer’s weak gambit. But when Clement, a Republican and former U.S. solicitor general, is on his game, he is a grandmaster, conservative and liberal lawyers agree.
“You want him; he is the best advocate of his generation,” says an old boss, another former solicitor general and Democratic nemesis, Kenneth W. Starr.
It is why, when 26 states decided to challenge the health-care law passed by Congress and championed by President Obama, which mandates coverage for all Americans, they hired Clement, who frequently bills at about $1,000 an hour but is handling the case for a capped fee of $250,000.
The personal stakes in the battle are high for Clement, 45. He has been a longtime favorite of conservative leaders, frequently mentioned by Republicans as being on the short list of Supreme Court nominees should the GOP win back the White House. Such talk has steadily grown since 2005, when President George W. Bush tapped him, at 38, as the nation’s solicitor general, an office that has been a gateway to the Supreme Court in recent years.
Legal allies and foes alike talk with awe about Clement’s professional style. So immersed is he in his cases — their arcane facts, their constitutional precedents, the logical hoops he’d like the justices to join him in jumping through — that he argues without notes. He disdains speechifying.
“Presidential debate-mode doesn’t work,” he says.
At a lectern, his conversational tone is amiably alto, deferential, Midwestern earnest; friends think it befits his suburban Milwaukee background.
“He’s a straight-shooter and honorable,” says Neal Katyal, a former principal deputy solicitor general in the Obama administration, against whom Clement has argued. “Paul’s very likable.”
Now and then, during oral arguments, Clement sports a grin in the midst of making a move or absorbing a momentary battering from the justices. His congeniality doesn’t so much mask his fierce intensity as abet it. His whole mien indicates that these are happy days; that there is nowhere else he’d rather be than with this pack of robed contrarians. It is like watching Bobby Fischer channeling Richie Cunningham from “Happy Days.”
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The grin belies his frequent jitters there. In 2004, as Clement approached the lectern in the Supreme Court to argue a case, his left hand trembled. Sitting inches away, Randy Barnett, nervous, too, as he prepared to argue the other side, studied the quivering hand with fascination. If Clement was tense, the condition must be the natural state of being here, thought a relieved Barnett.
“It happens,” Clement says. He argued his first case before the court in 2001 – “my nervousness was an 11 [on a scale of 10]; it couldn’t have gotten worse.”
Since the start of this millennium, Clement has argued more cases before the Supreme Court than any other lawyer, but some things don’t change, even after 57 appearances. He associates his tension with an exquisite agony, with a steely competitiveness and an adrenaline-fused sharpness not unlike that which girds many athletes. In the end, the tension helps him see a path to a W, the sports term he sometimes uses to describe a legal win.
“If the day ever comes when I don’t feel that nervousness, I guess that will be the time to get out and do something else,” he says.
It is difficult to imagine what that would be. Few people have ever appeared so destined for doing what they do. The Wisconsin schoolboy who demonstrated an early prowess for debating went on to excel at Georgetown University and Harvard Law School, where he served on the law review while Obama was its president and later became the review’s Supreme Court editor. Later, Clement clerked for Supreme Court Justice Antonin Scalia, with whom he probed and argued the points of cases.
“It was a good match . . .” Clement remembers. “It could be pretty intimidating then to get in legal discussions with him. . . . I thought to myself later that after you’ve had those kinds of exchanges with Justice Scalia . . . everything else that follows is a lot less intimidating.”
He went to work for Starr at the prestigious Washington firm of Kirkland and Ellis. “The way I looked at it is that we’d won the Paul Clement sweepstakes when we got him,” Starr remembers. “He had a sterling intellect.”