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Clement ‘Unusual,’ ‘Excellent’ Friend for Wall Street Watchdog

Oct. 25, 2019, 8:50 AM

If you told a regular U.S. Supreme Court watcher that Paul Clement was set to argue a high stakes business case, they might assume he’s arguing for the business.

They’d be wrong, at least when it comes to the fate of the Consumer Financial Protection Bureau, the brainchild of Democratic Sen. Elizabeth Warren and a conservative target whose structure is challenged in a case that’ll be argued later this term.

The Supreme Court on Oct. 23 invited giant of the high court bar Clement to argue as an amicus, or “friend of the court,” in support of the federal bureau which the Trump administration isn’t defending.

Clement, a former solicitor general under George W. Bush and now a partner at Kirkland & Ellis, has represented conservative interests on an array of big-ticket issues ranging from election to employment disputes.

“Clement is in many ways an unusual choice,” said Kate Shaw, professor at Cardozo law school in New York who has written about amicus appointments.

“In recent years these invitations have mostly issued to recent former Supreme Court law clerks, though not invariably,” she noted. “Clement clerked for Justice Scalia, but some years ago; he’s also unusual in the sheer volume of arguments he’s already done—nearly a hundred.”

But Shaw said that Clement is “an excellent choice” for this argument. “The stakes for the future of the administrative state could be very high, and the justices should have the highest quality advocacy possible on all sides of the argument.”

They’ll get that high quality with Clement.

“Here I am not surprised the Court went with Paul Clement, who will bring every bit the same level of skill as Solicitor General Noel Francisco or Deputy Solicitor General Jeff Wall would—and I just named three of the finest Supreme Court advocates of this era,” said Adam Mortara of Bartlit Beck in Chicago, who the justices invited to argue amicus positions in recent years.

Kannon Shanmugam, another elite Supreme Court lawyer, with Paul, Weiss in Washington, is arguing against the bureau on behalf of a law firm investigated for telemarketing violations.

“When a case presents particularly weighty issues—especially constitutional or jurisdictional issues—the Court has sometimes looked to more experienced members of the Bar,” said Catherine Carroll of WilmerHale in Washington, who was previously invited to argue an outside position.

She recalled the court extending amicus invitations in high stakes litigation over the Affordable Care Act to veteran advocates Bartow Farr of Kirkland & Ellis and Robert A. Long of Covington & Burling, both in Washington.

The justices also appointed a more experienced lawyer, Vicki C. Jackson, in the Defense of Marriage Act litigation, said another recent amicus appointee, Deepak Gupta of Gupta Wessler in Washington.

Clement didn’t respond to a request for comment on his appointment.

‘Best Traditions’

Politically, Gupta’s experience was perhaps the opposite of what Clement has ahead of him.

Gupta typically represents progressive interests, but, last term, the high court asked him to argue against Social Security claims.

“When the Supreme Court asks you to argue a position, you take that responsibility seriously,” Gupta said. “That’s what I did, or tried to do, and I have no doubt that Paul will do the same.”

Clement’s appointment is “in the best traditions of the bar,” he added. “We are officers of the Court, and we have an obligation to help the Court decide cases.”

On the subject of it being “amusing” to be cast in an atypical role, Gupta relayed a lighthearted anecdote.

“The morning that I had my argument in Smith v. Berryhill this past term, Paul was arguing another case that morning. I saw him in the lawyers’ lounge, and he was kind of gently ribbing me about how I was arguing to keep the little guy out of court,” Gupta recalled with a chuckle.

“And he said, ‘I wonder what they would have in store for me.’ Lo and behold, a few months later, here he is defending Elizabeth Warren’s baby.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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