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  • May 04, 2016

    Q&A with Paul Clement: Top Advocate at the U.S. Supreme Court

    Paul Clement, who has argued 83 cases before the U.S. Supreme Court, heads back to his native Wisconsin to present at the State Bar’s 2016 Annual Meeting and Conference. In this Q&A, learn more about one of the country’s top advocates.

    Paul ClementMay 4, 2016 – Even with 83 U.S. Supreme Court oral arguments under his belt, the thrill is not gone for Paul Clement. And this Cedarburg native, called “one of the most accomplished Supreme Court litigators of our time,” does not show signs of slowing.

    Clement, age 49, has argued more U.S. Supreme Court cases than anyone in the last 15 years. He argued about 50 cases as U.S. Solicitor General (2005-2008) and Deputy Solicitor (2001-2004), and has already argued six cases before the U.S. Supreme Court this term as a private practitioner at the Washington D.C. firm Bancroft PLLC.

    “It definitely gets easier,” said Clement in a phone interview from Washington D.C. “But the nerves are always there. If I wasn’t nervous about an oral argument at the U.S. Supreme Court, I would probably need to go find something else to do for a living.” 

    Less than 24 hours after his oral argument on April 20, in Encino Motorcars v. Navarro, he was talking to the State Bar of Wisconsin, taking questions about his work, his experience as clerk for Justice Antonin Scalia, and his upcoming visit to Wisconsin.

    Coming to Wisconsin

    A member of the State Bar of Wisconsin, Clement is a featured speaker at the State Bar’s 2016 Annual Meeting and Conference, June 16-17, in Green Bay. He’ll talk about “The Roberts Court,” down to eight justices with Scalia’s passing. And when Clement takes the stage at AMC, the Court will also be on the verge of some major decisions.

    “When I thought of the topic some time ago, I didn’t think the Court would necessarily be on everybody’s mind, although I thought it would be interesting to explore the Roberts Court 10 years into the tenure of John Roberts Jr.,” said Clement, who has appeared on a short list of possible U.S. Supreme Court nominees under a Republican President.

    “Then with Justice Scalia’s untimely death, it’s now front page news. As the term comes to a close in June, with an eight-justice court, I foresee a lot of discussion points,” said Clement, a graduate of Cedarburg public schools who went on to Georgetown University (B.A.), Cambridge University (M.A., economics), and Harvard Law School.

    Clement, former U.S. Solicitor General under President George W. Bush, has argued some of the most high-profile cases and controversies in the last decade, including recent challenges to the controversial Patient Protection and Affordable Care Act.

    Parties often call Clement when their cases are headed to the U.S. Supreme Court, but he represents an array of clients in state and federal appellate courts too. And his cases aren’t limited to questions of constitutional or statutory interpretation.

    For instance, Clement is representing the National Football League (NFL) against the New England Patriots’ Tom Brady in the “Deflategate” scandal, grounded in a collective bargaining agreement. The most recent ruling, from the U.S. Court of Appeals for the Second Circuit, affirms the Commissioner’s decision to suspend Brady for four games next season.

    State Bar Legal Writer Joe Forward, with help from Wisconsin attorney and former circuit court judge Michael Brennan of Gas Weber Mullins LLC, asked Clement some questions recently, hoping to get some insight from one of the nation’s top lawyers.

    What is your process for preparing for an oral argument at the U.S. Supreme Court?

    For a U.S. Supreme Court argument, you can’t be over-prepared. You really want to dedicate a lot of time to mastering the case and the record. For me, a critical part of that is preparing with at least two moot courts.

    That really helps me streamline and make sure the answers are efficient and accurate. It also gives me a sense of the types of questions the justices are likely to ask. You don’t want to hear anything for the first time in the Supreme Court.

    The moot court judges try to ask questions that may be similar to the questions the justices are likely to ask. It’s not like someone comes in and pretends to be Justice Breyer and somebody else pretends to be Justice Kagan. I’m just trying to get a sense of all the possible questions the justices may ask. You get smart people, ideally people who are arguing cases up there themselves and know the kind of questions the justices tend to ask.

    Do you remember the first case you argued at the U.S. Supreme Court and how you were feeling before that?

    The first case I argued was a qualified immunity case called Saucier v. Katz, and my folks came in from Wisconsin to hear me do that argument since it was my first one at the U.S. Supreme Court. A friend of mine asked me, ‘Won’t it make you nervous having your parents there?’ I said, ‘How in the world could I be any more nervous!’

    I don’t think this is that unusual, but you are really nervous until the justices start asking questions. At that point, you get into the back and forth and you are too focused on answering questions to be particularly nervous about it.

    But the whole process is an inherently nerve-wracking experience, and having those nerves is probably a good thing. It’s what helps you continue your preparation and continue your focus on giving the best possible answers.

    By the time a case gets to the U.S. Supreme Court, many attorneys may have “gamed out” how they think the justices will vote. When you get up to give the oral argument, do you have in mind “predicted votes” and does that influence how you phrase particular arguments, or to whom you direct your oral argument?

    That’s a great question. When I get up to argue a Supreme Court case, I always start with the idea that I’d like to get all nine justices to vote for me. On the other hand, having read their previous opinions in the area, you also go up there with an understanding that certain justices are more or less likely to be predisposed to go your way. And so, while I’m still trying to get nine votes, I also have in mind a likely path to get five votes. With that in mind, if you start getting the sense that one of those five justices seems like he or she might vote against you, that’s a pretty bad sign, and you have to readjust your strategy.

    Conversely, if one of the justices who you think might be against you starts asking some more friendly questions, then you readjust on the fly as well.

    US Supreme Court chambersOne case I remember very distinctly. Going in, my most likely fifth vote was the chief justice, back when it was Chief Justice William Rehnquist. And then about five minutes into my argument, he made clear that he wasn’t going to vote for me.

    Part of me wanted to curl up in a ball. The other part said, ‘Well that’s not how I’m getting to five,’ and I kept plugging away. I ended up getting Justice [Sandra Day] O’Connor as the fifth vote, even though going in, based on voting in some previous cases, you would have thought that the Chief Justice was a much more likely fifth vote than Justice O’Connor. So that’s a great illustration of how you may have a preconception about how the justices are likely to vote. But you don’t let it get you so locked in that you are not able to make adjustments as the argument goes on.

    I read media reports from those covering oral arguments at the U.S. Supreme Court, and they say ‘this Justice seemed likely to vote this way, and that Justice that way.’ Can you really tell, based on the questions, what way a Justice is likely to vote?

    You get a sense of it, but you never get too confident that you know how they are going to vote. You get a sense of what’s bothering a justice, maybe something that seems like it’s a problem for them, but I’ve seen too many arguments where it seemed like a justice was really troubled by your position in the case, and then when the opinion comes out, they end up voting your way or vice versa.

    At the end of the day, they are just questions, and sometimes they are just testing the position they may ultimately adopt, poking holes before they say they are ready to embrace that position. Sometimes, it may seem like those questions are hostile, but it turns out they are just making sure that before they embrace a position, they have tested the ramifications of it and all the problems that it could create.

    In general, if a justice is asking hostile questions of one side and not asking many questions at all of the other side, you can usually predict, all things being equal, how that justice is going to vote. The clues are there. I’ve had a couple cases this term that I’ve been fortunate enough to win unanimously. But if you went back and looked at the argument transcript in those cases, you wouldn’t necessarily think that a unanimous decision was coming down.

    Do you find certain types of cases easier to argue than others? For example, cases involving statutory interpretation versus interpreting an open-ended constitutional provision like due process or equal protection?

    I’m not sure that one type of case is easier to argue than the others. The case I argued yesterday was a statutory construction case. In a case like that, I put together a binder of cases that are relevant. And it was a smaller binder than in a case where you argue, say, a Fourth Amendment issue.

    And that’s just because in the statutory construction realm, you have certain Supreme Court cases that invoke certain canons of construction or give you guidance as to how to interpret certain kinds of statutes. But the focus of the argument is on the text of the statute. If it’s a case that made it all the way to the Supreme Court, it’s not open and shut based on prior cases.

    Conversely, when you are arguing a constitutional case, especially something like the Fourth Amendment, which provides pretty broad guidance – no unreasonable searches – you end up having to read lots and lots of Supreme Court cases that would give you an indication of what is reasonable and what is unreasonable. In different kinds of cases, you have to prepare in different kinds of ways. And I really enjoy that.

    I sometimes jokingly say that being an appellate lawyer or a Supreme Court lawyer is a great occupation for people with short attention spans because every case really is different. You go in and you really end up mastering a new area of the law.

    Some people can practice their whole lives in a particular area of the law and they really master it, but are not necessarily the right person to argue the case at the U.S. Supreme Court. Because part of the challenge is to explain sometimes a pretty technical area of the law to justices who themselves aren’t going to spend their whole careers with that particular statute. It makes sense to get a generalist to argue in the Supreme Court because you are arguing to nine, right now eight, other generalists.

    Having a tax specialist arguing to eight or nine generalists is not necessarily the best formula. I love it because I get to tackle a new area of the law and learn it, and I find that very rewarding and very interesting. But it means that in every case, you are coming in pretty fresh and you are not necessarily going to say ‘I got this one’ because I already argued a first amendment case. That’s not really the way you think about it.

    The big test for a legal originalist is when the Constitution’s plain text contradicts one’s policy preferences. One example commonly given is Justice Scalia’s distaste for flag burning, but he voted with the majority in Texas v. Johnson. Have you been in a position where the argument you offer is contrary to, or at least not fully consonant with, your personal legal philosophy?

    Sure, all the time. But that’s what makes it nice to be an advocate rather than a justice. A justice has to develop a coherent philosophy of the law and try to stick to it. Justice Scalia’s vote in the flag burning case you pointed out would not necessarily graft onto his policy preference. As a lawyer, it’s easier. There are certainly going to be cases that, if you were a federal judge you might decide against you. But from my perspective of what it means to be an appellate lawyer who is taking generalist cases, that’s not a problem at all.

    In some ways, it’s easier to argue a case where I might disagree with me if I were a judge because the first step in arguing the case is to determine the hard questions that somebody who might disagree with me is going to ask. And if you are that person, it’s easier to say, ‘Well, here are six things I might be skeptical about.’ You are already half way there in answering the hard questions. If you go in as kind of a true believer, sometimes it’s harder to actually perceive the weakness of your case.

    It’s almost an advantage to come in there with a little bit of skepticism. There are some people who argue only one kind of Supreme Court case from only one perspective and do a very nice job. For example, somebody from the ACLU or a religious liberty group can have a consistent perspective on all of these cases. But sometimes when people wander into a hostile judge, it’s harder to figure out where that judge is coming from.

    I’ve been on both sides of the same kind of issue. With that perspective, it’s easier to figure out where potentially skeptical justices are coming from and come up with some of the answers that might make a skeptical justice more comfortable that your position is really the right position at the end of the day, as a matter of law.

    Any personal reflections on your clerkship with Justice Scalia, and what he meant to you and your career?

    Obviously, it was an amazing experience to clerk for Justice Scalia. One of the things that made clerking for Justice Scalia different from clerking for some other justices was almost all the interaction in the chambers was done in-person, through conversation. It’s typical in a lot of Supreme Court chambers and a lot of other appellate clerkships to write the justice or judge long bench memos about the case, where you explain the arguments on both sides.  It can go on for pages and pages.

    Justice Scalia would ask for a single page to get the bare facts and to frame the case, and then he would have a discussion with the law clerks about it. Even if it wasn’t your case, you would go in and talk about the case and discuss it and kick around theories about how to approach it. And boy, that was a heady experience for somebody who is 25 or 26 years old coming out of law school.

    He remained a mentor and a friend. And when I think of it in terms of the rest of my legal career, having already had that experience of mixing it up with Justice Scalia about hard legal questions, early in your career, there’s nothing in the law that is particularly intimidating after that experience. It was something that kept on giving because of having such a formative experience so early in your legal career.

    Can you talk a little about what you will focus on this summer, when you are in Wisconsin?

    I’m going to talk about the Roberts Court and focus on some of the issues the Court decided this term and the previous couple of terms. Given Justice Scalia’s passing, I will probably also offer a few reflections about what he has meant to the Roberts Court and the reality of arguing cases to eight justices.

    When you were growing up in Cedarburg, did you ever think you would argue more than 80 cases at the U.S. Supreme Court, with more to come?

    No. Arguing cases before the U.S. Supreme Court was not something that was in my conception at the time.

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