Three Quick Thoughts on Recent Media Coverage of Paul Clement

In the run-up to the Affordable Care Arguments, there has been a ton of media coverage about Paul Clement, the attorney who is doing the bulk of the arguments for the challengers. Examples include the Associated Press, New York Magazine, and NPR’s Nina Totenberg. Three quick thoughts on the coverage:

1) Although I agree that Clement is the best proven Supreme Court advocate of his generation, I’m not as sure that Clement was the best pick for the state challengers in this case. The constitutional challenge to the mandate tries to invalidate the signature legislative achievement of a Democratic president, and it was thought up by political opponents of the President late in the running and then adopted by many Republican lawmakers. Clement is a marvelous lawyer. But if I were hiring counsel to argue against the mandate, I would have tried to counter that political narrative by hiring a prominent Democrat — or at the very least, someone not clearly affiliated with the Republican party. Choice of counsel can send a signal to the Justices that the case is more about long-term principle and less about short-term politics. Michigan’s decision to hire former Rehnquist clerk and right-of-center appellate lawyer Maureen Mahoney to defend affirmative action in Grutter v. Bollinger provides a useful reference, I think. Of course, it may be that no prominent Democrat would have taken the case, especially after Mahoney’s representation of Michigan is sometimes thought to have sunk her chances of being nominated to the Supreme Court by President Bush a few years later. But it would have been worth trying.

2) A lot of the press reports point out that Clement argues before the Justices without notes. I’ve only argued one Supreme Court case, but at least based on my very limited experience, that particular practice doesn’t seem notable to me. You don’t have time to look at notes when you’re up there at the podium. And you’ve gone over the argument so many times in your head that you don’t need to. (Law students who have taken an open-book exam and then later realized that they never looked through their outlines know how this works.)

3) Near the end of the Nina Totenberg segment on Clement, Tom Goldstein expresses doubt that Clement could get confirmed to the Supreme Court given his association with Republican causes that are deeply controversial on the political left. For what it’s worth, I don’t think we can know what the chances of confirmation might be without knowing the make-up of the Senate that would do the voting. Over the last decade, we have moved towards a system of near uniform party-line voting for Supreme Court nominees. As long as the President’s party controls the Senate and the Senators in the President’s party support the nominee, nominees generally have the votes to get through. The open question at this point is what happens when the President’s party is in the Senate minority. Then you run into lots of interesting game theory questions for each side, but the process is sufficiently unpredictable that it’s hard to know who could make it through.