I agree with Emily Bazelon about the irony of the
results in health care and Arizona immigration, given how things looked after oral
argument. (Slate article, linked here, re:
Paul Clement and elite Supreme Court advocates.)
Three responses to other points:
1-If we are talking about whether elite Supreme Court
advocates are overrated, one of the main points of the Bazelon article, its
health care and Arizona immigration references are not good case studies,
because both sides in both cases had the elite.
The article compares the pay of Clement and Solicitor General
Donald Verrilli, as if to say, “Look, this underpaid government lawyer
bested the $1,000-an-hour man. Who needs a superlawyer?” Problem is, Verrilli, a veteran
of BigLaw, Jenner & Block, who has handled numerous Supreme Court cases, is
a superlawyer himself. Verrilli has taken a pay cut to be in public service—the
pay cut Clement took a few years ago, for the same reason. Clement was in the
SG's office from 2001-2008, in different roles, including SG.
Verrilli versus Clement in the two big cases was not David
versus Goliath. It was Brennan clerk versus Scalia clerk. It was Columbia
J.D. versus Harvard J.D. It was Goliath versus Goliath.
2-It is true, as Bazelon notes, that Clement lost health care
and Arizona immigration. Those were the big-ticket items. Absolutely. But,
Clement "came out of this last Supreme Court term a big loser"? By my
count, his term win-loss record is 4-3. The four wins include Perry v.
Perez, an important Voting Rights Act case that was a unanimous victory for
Clement. Sign me up for the "big loser" badge, if it means
winning four Supreme Court cases in one term (or a lifetime).
3-Bazelon rightly notes that there has been little commentary
about Clement after the big decisions came down. Two reasons come right to
mind:
One is in the article itself, a Tom Goldstein quote:
"[Clement] got the very most that was humanly possible out of these
cases....With health care in particular, he took what I always regarded as an
impossible case and almost pulled it off. My opinion remains unqualified that
he is the best."
Also, there is a little thing called karma. Clement is
benefiting from it. Although others, on both sides, took the opportunity to
slam or score easy political points based on what they saw as Verrilli's poor
performance, Clement did not. I remember watching one of the press conferences
during the health care argument week, in which Clement praised Verrilli and
said in effect that it had been an honor to share the podium with him. Life
lesson alert.
