Paul Clement is the GOP’s unofficial super lawyer. Solicitor general during the George
W. Bush administration and currently a partner at the DC law firm Bancroft, he has
recently argued some of the biggest pieces of the Republican agenda. The trouble is,
he can’t seem to win.
His losses certainly aren’t due to a lack of skill. Clement’s peers across the political
spectrum consider him one of the nation’s most talented appellate advocates. When
he argued against President Obama’s health-care reform law at the Supreme Court earlier
this year, the chattering class largely agreed he had wiped the floor of One First
Street with his opponent, Solicitor General Donald Verrilli. But in spite of Clement’s
seemingly flawless delivery, the justices upheld Obamacare.
He also argued in favor of Arizona’s controversial immigration law at the high court
last term. Though the justices upheld the most contentious piece of the law, which
allows police to check people’s immigration status, they struck down other key parts
of the statute.
This fall, Clement lost his second battle at a federal appeals court arguing that
the Defense of Marriage Act—which defines marriage as between a man and a woman—is
constitutional. The Second Circuit Court of Appeals ruled in October that DOMA violates
the Constitution’s Equal Protection Clause. Clement previously lost the same fight
at the First Circuit Court of Appeals, which found the law unconstitutional in May.
The DOMA losses may carry an extra sting, given that Clement very publicly gave up
his partnership at 800-lawyer King & Spalding to defend the law. When House Republicans,
led by Speaker John Boehner, retained Clement to defend DOMA last year, King & Spalding
withdrew from the representation amid backlash from clients and the LGBT community.
Clement tendered his resignation—stating that “a representation should not be abandoned
because the client’s legal position is extremely unpopular in certain quarters”—and
joined small, conservative Bancroft.
One thing Clement isn’t losing is money. The House Administration Committee revealed
in October that, under a contract with Bancroft, House Republicans have so far paid
nearly $1.5 million of taxpayer money in legal fees to Clement’s firm for the Defense
of Marriage representation.
A version of this article appears in the December 2012 issue of The Washingtonian.