Paul Clement hits record as prolific Supreme Court advocate : NPR

It’s arguable whether Paul Clement is the best Supreme Court advocate of his generation. But there’s no doubt he’s the most prolific.

When he approaches the lectern at the Supreme Court Wednesday, it will mark his 129th time arguing before the justices.

He defined the job this way at a recent conference sponsored by the conservative National Review magazine: “I always think a good working definition of a good Supreme Court advocate is somebody who’s trying to get to five for their client,” Clement said.

Five of nine justices — in other words, victory.

The Republican super-lawyer has racked up dozens of those wins since his days as solicitor general in the George W. Bush era.

For the last couple decades, Clement has worked outside government, often challenging actions by the White House. But Clement told the National Review he’s still a fan of a strong executive branch.

“I’m a big believer in the unitary executive — but that doesn’t mean that the president gets to do anything he wants,” he said.

Clement famously tried to get the Supreme Court to overturn President Obama’s signature health care law, a loss that still stings.

But he did convince the justices to deliver on other, long-held Republican priorities, like keeping judges out of partisan gerrymandering; telling courts they do not have to defer to federal agency expertise; and striking down restrictions on guns.

That work defending gun rights has been controversial, as his law partner Erin Murphy recalled recently.

“We had lots of different cases and clients, and over time, it just became something more and more people were complaining about,” Murphy explained in a webinar about defending unpopular clients sponsored by the conservative Federalist Society.

“The firm said you can remain at the firm only if you drop your existing clients and discontinue the Second Amendment work you had done,” Murphy recalled. “We said, ‘No thank you’ and went and started our firm, Clement and Murphy.”

Defending law firms against Trump orders

Ironically, Clement and Murphy are now working on behalf of big law firms, which are challenging punitive executive orders by President Trump.

Trump went after the firms for hiring attorneys who once investigated him, yanking their security clearances and barring them from federal buildings.

Clement made his case to the D.C. Circuit appeals court in May.

“The executive orders run afoul of the better part of the bill of rights,” he said.

Clement argued the president violated the First Amendment rights of the law firm and had unlawfully retaliated against them.

“Lawyers cannot zealously represent their clients while walking on eggshells for fear of reprisals,” he said. “Thus the executive orders strike at the heart of the rule of law and the zealous representation on which the judiciary and the adversary process depend.”

But when Clement told the three-judge panel that he backed a strong executive branch, conservative Judge Neomi Rao, a Trump appointee, interjected.

“You know, look, I’m kind of a unitary executive guy myself, so I’m not going to tell you that a president does everything that the process …” Clement began.

“Not any more,” Rao replied, prompting murmurs from the audience. “Not any more.”

“No, I really I am, I really am, trust me on that,” Clement responded.

The appeals court has not yet ruled in the law firm case.

Victories against Trump administration

But Clement has already prevailed in other high-profile disputes against the Trump administration, in cases where he says they’ve gone too far.

For example, this year, the high court refused to allow the president to fire Lisa Cook, a member of the Federal Reserve Board.

Clement successfully defended the federal district court in Maryland, where the Trump Justice Department sued every single judge over an order on immigration detention.

Clement, 60, appeared on a shortlist for the Supreme Court during Trump’s 2020 campaign. Given his work on behalf of several Trump targets, that idea now seems out of the question.

He told the National Review he never planned to take his foot off the gas pedal when he saw examples of overreach by the executive branch, no matter who controls the White House.

But the case he’s set to argue Wednesday is one that doesn’t concern the White House: it involves a 1988 law Congress passed to protect consumers’ privacy when they rented videos. Clement argued in court papers that plaintiff lawyers have been stretching that old law in recent years to cover situations that extend far beyond a trip to the old Blockbuster video store.