Furious George By Neil Kinkopf
The Missing Link By Michael Greenberger
Monkey Wrench By Cass R. Sunstein
Lessons From the Swiss Cheese Map By Shari Motro
Disarming and Dangerous By Chris Suellentrop
King James I, of Michigan By Geoffrey Gagnon
Disarming and Dangerous
Meet the affable, consensus-building solicitor general, and learn why liberals should fear him.
ON A WEDNESDAY MORNING IN LATE APRIL, Paul Clement sat alone at a table before the Senate Judiciary Committee. Behind him an array of friends, colleagues, and family had assembled to view a "full committee hearing" on whether Clement should be the next solicitor general of the United States.
The solicitor general represents the federal government in front of the Supreme Court, and the nomination of George W. Bush's first candidate for the job had been a disputatious affair. Ted Olson squeaked out of committee four years ago on a 9-to-9 party-line vote before being confirmed by a narrow margin in the full Senate. The controversy centered on how deeply involved Olson had been in the American Spectator's anti-Clinton "Arkansas Project," an investigation of Whitewater, "Troopergate," and related scandals, and on whether Olson misled the Judiciary Committee about his involvement. Beyond the Arkansas Project, Olson's membership in several conservative legal groups was enough to raise questions in the mind of the committee's ranking Democrat, Vermont Senator Patrick Leahy. Leahy asked Olson at the hearing, "Does your involvement with the American Spectator Educational Foundation, the Federalist Society, Independent Women's Forum, the Washington Legal Foundation in any way diminish your ability to act independently as solicitor general?"
Yet for Clement's confirmation hearing, only three senators showed up. One of them, committee chairman Arlen Specter, excused himself almost immediately and turned the gavel over to the committee's lowest-ranking Republican. Ranking Democrat Leahy didn't bother with even a cameo appearance. Instead, the opposition party was represented by Wisconsin's Russell Feingold, who gave glowing testimony on behalf of his state's native son. A grand total of three reporters sat at the press table as Clement read his opening statement, thanked his wife and his parents, and answered maybe five questions, before everyone got up and left. The hearing lasted 26 minutes.
At a time when Washington is supposed to be as polarized as ever, Clement boasts a résumé seemingly designed to infuriate liberals. But it doesn't. Name a Station of the Cross for a member of the conservative legal establishment, and Clement has stopped there. The 38-year-old clerked for Judge Laurence Silberman on the United States Court of Appeals for the D.C. Circuit, who is known for his acid criticism of liberals, and for Justice Antonin Scalia on the Supreme Court. The men who have hired Clement since then include former Whitewater independent counsel Kenneth Starr, former attorney general John Ashcroft, and Olson. For Bush v. Gore, Clement didn't just file a brief; he helped write one with Pat Robertson's American Center for Law and Justice. On paper Paul Clement should be one of the capital's most divisiveif not reviledlawyers. Instead, he looks to be one of the few members of the Bush Administration who has left each position he has filled more respected by Democrats than when he started.
The contentious nature of Clement's work makes this feat remarkable. As the principal deputy in the Office of the Solicitor General for the bulk of President Bush's first termuntil being named acting solicitor general last JulyClement took responsibility for the Administration's terrorism docket. He shepherded all the major cases, from the Moussaoui trial to Hamdi v. Rumsfeld, Rumsfeld v. Padilla, and Rasul v. Bush, through the lower courts. Before the Supreme Court, he argued Hamdi, a case about whether an American citizen captured in Afghanistan and regarded as an enemy combatant was entitled to meet with a lawyer, and Padilla, which centered on the legality of the indefinite detention of an American arrested in Chicago on his way back from Afghanistan and deemed an enemy combatant. Clement has been the Bush Administration's chief courtroom advocate for its assertions of expansive, nearly unrestrained wartime powers. Yet almost universally, even among those who believe that his courtroom arguments undermine the nation's traditions of respect for individual liberty and the rule of law, Clement's work inspires admiration rather than loathing.
"I think throughout [Clement] respected our position and our right to bring the case," said Thomas Wilner, a partner at the law firm of Shearman & Sterling, who represented suspected terrorist Shafiq Rasul in Rasul v. Bush. His implication, unspoken, was that others did not. In the rhetoric of the past three and a half years, lawyers like Wilner have come to be seen as something close to enemies of the state. The charge has found its latest manifestation in the concept of "lawfare," the notion that briefs and motions are themselves tools of combat, like bombs and missiles. Under this theory, lawyers like Wilner are enemy combatants no different from their clients. Frank W. Dunham Jr., who represented Yaser Hamdi and Zacarias Moussaoui, said that Clement, unlike many of his colleagues, "doesn't make you feel like you're a traitor. . . . When we're outside the court, he doesn't look at us snarly or walk away from us, or that kind of thing." After awhile, talking to people about Clement leaves you with the feeling that he's a nice guy surrounded by jerks and zealots.
People who have dealt with Bush Administration lawyers, including lawyers who served in the Administration, seem accustomed to watching ideological zeal outweigh smart legal tactics or the government's institutional interests. They won't say that aloud, of course, but it's hard not to come away with that impression. "He won't let his legal analysis lead him down a hole someplace where it leads to an absurd result," said H. Christopher Bartolomucci, who served as associate counsel to the president from 2001 to 2003. Gregory Garre, head of the Supreme Court appellate practice at Hogan & Hartson and an assistant to the solicitor general from 2000 to 2004, made a similar comment about Clement that is uncontroversial on its face but damning in its implications: "He's someone who is interested in getting to the legal position that's in the best interest of the government, and I think people respect that."
Lawyers use all sorts of clichés when talking about their colleagues to reporters, and that may sound like a typical oneuntil you realize that if it's worth praising Clement for not sinning, he must be surrounded by a lot of sinners.
CLEMENT IS THE FORREST GUMP OF THE LEGAL WARS of the past 15 years. He shows up again and again, at all the critical junctures along the way, yet emerges unspoiled, untainted, and even beloved. He does not stand at the center of controversy, but he is often there on the periphery.
During Clement's third year at Harvard Law School in 1991-1992, he was involved in the biggest scandal in the nearly 120-year history of the Harvard Law Review. Clement was Supreme Court editor that year when the Revue, the law review's annual parody issue, which is published out of the same offices, mocked a law review article by Mary Jo Frug, a feminist legal scholar and the wife of Harvard Law professor Gerald Frug. She had been murdered one year before by a knife-wielding assailant, and the law review had published an unedited and unfinished draft of her "A Postmodern Feminist Manifesto" as a tribute. The tone of the Revue parody of Frug's article, as well as its distribution on the exact anniversary of Frug's murder, outraged campus liberals, including Harvard's best-known professor of constitutional law, Laurence Tribe, who hyperbolically compared the law review editors to Holocaust deniers for suggesting "that the hatred of women is a hoax perpetuated by paranoid feminists." Tribe added, "The law review might well have danced on Mary Jo's grave for what they did."
Although Clement was not one of the two students who admitted to writing the parody, he was one of eight law review editors who signed a letter of apology for publishing it, for being "involved to varying degrees with the production of the Revue," and for not taking "greater steps to prevent the publication of the offending material." As a conservative, Clement was ideologically sympathetic to the Revue authors, but being a fellow traveler didn't mean he was in the middle of the scandal. Eleanor Kerlow, the author of a book that discusses the law review scandal, notes that the Revue authors poked mild fun at him for arrogance, using mock footnotes: "See CLEMENT, I Can Explain Anything with a Graph, in THE ANALYSIS IS EASY ONCE YOU ASSUME AWAY THE HARD STUFF 54 (1992) . . . See CLEMENT, Renaissance Man: Self-Proclaimed Debate King, Econ Scholar, Stud, in GOD, I'M GOOD 32 (1966-?)."
The episode was the first public occasion for Clement to demonstrate his gift for being personally connected to a subject that inspires vituperative and hostile debate and yet emerging unsullied. It was also perhaps the first time that Clement benefited from being considered not as bad as his ideological allies. "Where you have 'liberals' on one side and 'conservatives' on the other side, Paul was somebody who was definitely respected by both sides," said Mark Harris, a colleague on the law review.
That gift followed Clement to Washington, from his time at the law firm of Kirkland & Ellis (where he was hired by Kenneth Starr before Starr left to become independent counsel) to his tenure on then-Senator Ashcroft's staff on the Senate Judiciary Committee to when he headed the appellate practice at the firm of King & Spalding. When Clement arrived at the solicitor general's office in 2001 after Ashcroft became attorney general, some career lawyers suspected that he was an Ashcroft hack, put there to ensure the ideological purity of their work from his position as the political deputy in the office. He quickly dispelled any concerns. "Anyone coming in as the principal deputy has to earn the respect of his colleagues," said Gregory Garre. "Paul did so almost immediately, in terms of the way that he handled himself with his colleagues, in terms of his management style, and of course his advocacy skills before the court."
In less than four years in the solicitor general's office, Clement has begun to draw comparisons to stars of the Supreme Court bar. He works without notes and addresses the justices by name in a chatty, expository style. One of his techniques is to give short, direct, yes-or-no answers to the justices' questions before elaborating. The tactic, along with Clement's tone and the greater deference the Supreme Court gives to lawyers from the solicitor general's office, at times creates the impression that Clement is giving instruction to nine pupils: "Justice Breyer, the simple answer is you were right all along," Clement declared during McConnell v. FEC, the 2003 campaign finance case.
Lawyers in the S.G.'s office are said to have a dual responsibility, to the president as his advocates but also to the Supreme Court as counselors, and to speak for the interests of all three branches of the federal government. Clement has operated in this tradition and has shown the ability to enthusiastically and effectively defend statutes that were sponsored by Democrats. One of the reasons for Senator Feingold's full-throated endorsement at the confirmation hearing was Clement's argument before the Supreme Court in McConnell v. FEC, regarded as one of his best. The vigor with which Olson and Clement defended the McCain-Feingold campaign finance law, which was supported mainly by Democrats in Congress, contrasted sharply with then-Solicitor General Robert Bork's halfhearted defense of campaign finance law in 1976's Buckley v. Valeo. At a 2003 conference on the Office of the Solicitor General, Judge Frank Easterbrook observed that Bork's first Buckley v. Valeo briefsigned by Easterbook, who was then an assistant to the solicitor generalimplied "that independent thought might raise a lot of deep questions" about the law.
In McConnell v. FEC, Clement was given the task of defending what was presumed by experts on the law to be the least defensible provision of McCain-Feingold: the prohibition on corporations' use of general funds to pay for TV ads that mention political candidates by name within 60 days of an election. Most observers thought the court would strike down the provision, along with other major provisions. But supporting former solicitor general Seth Waxman and then-Solicitor General Olson, Clement helped win a 5-to-4 decision by insisting that the law was a reasonable extension of 100 years of campaign finance jurisprudence. Again and again, Clement compared the case to the court's 1990 decision in Austin v. Michigan Chamber of Commerce, which upheld a Michigan law that banned corporations from spending general treasury funds in support of candidates for state office. At one point, a frustrated Scalia remarked to his former clerk, "You really like Austin, don't you?" Clement replied with the enthusiasm of a TV pitchman, "I LOVE Austin!" He added, "It's binding precedent. I don't reallyI mean as much as the plaintiffs don't seem to like the case, I don't hear them asking this court to overrule it." At another point, Scalia complained of a particular precedent cited by his former clerk, "Five to four, and don't blame it on me." Clement's amiable reply drew the bigger laugh: "Very well, Justice Scalia, but I'll take the five to four."
Clement's most controversial moment before the court occurred when he argued the enemy combatant cases last year. During oral argument for Padilla, Justice Ruth Bader Ginsberg asked Clement, "If the law is what the executive says it is . . . what is it that would be a check against torture?" There are treaty obligations, Clement replied, and there is the threat of court martial for people in the military who torture enemies contrary to the law. Ginsberg persisted. "Suppose the executive says mild torture, we think, will help get this information. It's not a soldier who does something against the Code of Military Justice, but it's an executive command. Some systems do that to get information." Clement's answer was, "Well, our executive doesn't." Eight hours later, CBS broadcast the first of the Abu Ghraib photos.
Legal scholars immediately began chattering: What did Clement know, and when did he know it? In Salon magazine online, law professors traded turns taking shots at him. Stanford's Jenny Martinez, who argued against Clement in Padilla, said, "Either [Clement] was deliberately misleading the court or he was completely out of the loop. Either one would be disturbing when the government's main argument is 'trust us.' " In a particularly blunt blog post titled, "Did the Justice Department Lie to the Supreme Court?" the University of North Carolina law professor Eric Muller called for a congressional investigation of Clement.
But soon after Muller raised his concerns, Clement's friends and colleagues began reaching out to set Muller straight. "I was privately assured by many people who knew or know Paul Clement that he's an absolute straight shooter and an up-and-up kind of guy, and not the kind of person to dissemble and not the kind of person to knowingly mislead the court," Muller said. "The people who came to me were actually people who were on the other side of the aisle. They were Democrats who had worked with him or known him." What struck Muller about the outreach was the way in which it went beyond the clubby rules of the Supreme Court bar, where practitioners are loath to criticize one another. "People were actually taking the initiative to contact me, in a sense reaching out to say, 'You've got the guy wrong,' " Muller said. "That's way beyond the call of club rules."
In the past year, that controversy has been forgotten and almost no one believes that Clement lied to the court. Still, many observers predicted that Democrats would use his confirmation hearing to rough up the Administration one more time for its treatment of detainees at Guantánamo Bay and elsewhere. Instead, the subject never came up. Just as he did at Harvard, Clement appears to have benefited from the perception among liberals that he's not as bad as the company he keeps.
INSIDE THE ADMINISTRATION, CLEMENT IS REPUTED TO HAVE PRESSED for a less expansive legal argument in the enemy combatant cases than the one he is on record as making. In an Atlantic Monthly article last year, a former senior Justice Department official said that Clement, along with Ashcroft and Olson, was "personally deeply uncomfortable" with the argument that Padilla and Hamdi did not have the right to counsel. Giving liberals more encouragement, Clement argued in those cases that there are some limits on executive power when it comes to torturea position at odds with much of the rest of the Republican Party.
But if liberals have found a few things they can point to for encouragement in Clement's record, conservatives can point to many more. For example, according to A Black and White Case, Greg Stohr's account of the University of Michigan affirmative action legal battle, Clement advocated that the 1978 Bakke landmark upholding affirmative action in higher education should be overturned. That position was taken by many conservative legal scholars and was favored by Clement's boss Ted Olson, but went beyond the one the Bush Administration ultimately staked out in the University of Michigan case.
Clement's friends and allies emphasize his conservatism as well as his courtesy. Viet Dinh, a Georgetown law professor who has known Clement since law school and served with him in the Ashcroft Justice Department, said, "Paul is no pushover. He knows what he knows, he believes what he believes." Carol Platt Liebau, a friend of Clement's from Harvard and a deeply conservative blogger and political commentator, suggested that some people make a mistake by assuming that Clement's style determines his substance. "I think that really tells you more about what their stereotype of 'conservative' is than it tells you what Paul is like," Liebau said. "Obviously, if you read his résumé, you know where he's coming from."
That résumé is why liberals like Eliot Mincberg of People for the American Way and Nan Aron of the Alliance for Justice have suggested that they may fight a Clement nomination to the federal bench. Their main opposition seems to be his conservative résumé. Mincberg didn't give specific reasons for opposing Clement when queried by Legal Affairs and Aron didn't return a phone call. Clement unsuccessfully applied for a seat on the Seventh Circuit, and many people think he continues to harbor judicial aspirations. After four years as S.G., Clement would still be in his early 40s. What then? "He could be a judge. He could be an attorney general. He could be on the Supreme Court. One never knows," said Olson.
Just as the congressional Republican revolutionaries cast aside Newt Gingrich as speaker of the House once he had proven to be no longer useful to their movement, replacing him in due course with the less polarizing Dennis Hastert, legal conservatives may be attracted to people like Clement now that it is time to govern the empire rather than build it. Ronald Reagan's first solicitor general, Rex Lee, told National Public Radio's Nina Totenberg in 1985 that sometimes conservatives must decide, " 'Do you want to blow the bugle?' or 'Do you want to win the war?' " The Robert Borks and Antonin Scalias of the world were useful during the early days of the conservative legal revolution, when the goal was to dissent noisily and brilliantly, if sometimes intemperately, for posterity. On the Supreme Court, Scalia has blown the bugle loudly, but many commentators have noted that he hasn't tried to build a consensus among his colleagues around his viewpoint.
Like Clement, Scalia was known as a charmer before he rose to the bench. But Scalia was never openly admired by liberals in the way that Clement currently is. "There's a tendency of advocates, even really good ones, to try to bury the hard facts that are on the other side," said Georgetown law professor Neal Katyal, lead counsel for Salim Hamdan, Osama bin Laden's alleged driver, in Hamdan v. Rumsfeld, a case about whether Article V of the Geneva Conventions applies to Hamdan as a Yemeni who worked for bin Laden and who is detained in Guantánamo Bay. "And [Clement's] intuition is the reverse, is always to make the most of the other side's case and explain why it's wrong."
In other words, although some liberals fear that Clement would be too much like Scalia on the bench, their real concern ought to be that he would be too little like him. To win the future, you must at some point win the present. While the zealots howl, and Clement sometimes loses battles, he is quietly winning the war for legal conservatism.