11/06/2011

Lawyer Opposing Health Law Is Familiar Face to the Justices

 

This lawyer is well liked, and he has represented clients in 54 cases before the Supreme Court of the United States.

    This week and last, Mr. Clement, 45, filed briefs supporting the Obama administration’s request that the court accept his health care challenge from among the several pending before it. He is lead counsel in the high-profile Florida case filed by Republican governors and attorneys general from 26 states. In August, he and his co-counsel, Michael A. Carvin, won the only appellate ruling to invalidate the act’s keystone provision, which will require most Americans to obtain medical insurance, starting in 2014.

    “I do think there’s a good chance that the court will take the 11th Circuit case,” Mr. Clement said in an interview in his M Street office. “It may take other cases as well. But in the 11th Circuit case you’ve got a statute of Congress struck down as unconstitutional, in a way that creates a circuit split, and the federal government is petitioning. I’m not sure there’s ever been a case that had those three things going for it that wasn’t granted.”

    Mr. Clement. As a former clerk to Justice Antonin Scalia, Mr. Clement maintains a breezy but respectful rapport with the justices. It is assumed that his familiar name on a petition can improve the 1-in-100 chance that a case will be accepted for consideration.

    That is among the reasons Gov. Jan Brewer of Arizona hired Mr. Clement to handle her state’s Supreme Court appeal of rulings against its groundbreaking immigration law. The speaker of the House, John A. Boehner, engaged him to contest challenges to the 1996 Defense of Marriage Act after the Obama Justice Department declared it was unconstitutional and stopped defending it.

    Mr. Clement, who has argued more Supreme Court cases since 2000 than any other lawyer, made his 54th appearance in mid-October and has another scheduled for December.

    Mr. Clement’s familiarity with the court was on display in an edgy exchange in 2009, when he argued in Perdue v. Kenny A. that lawyers occasionally deserved enhanced fees for exceptional performance. It had been barely a year since he left the solicitor general’s job, with its $158,500 salary, for a huge pay package at King & Spalding.

    Chief Justice John G. Roberts Jr., who had himself once enjoyed a lucrative law practice, started the ribbing. “Maybe we have a different perspective,” the chief justice said. “You think the lawyers are responsible for a good result, and I think the judges are.”

    “And maybe your perspective’s changed, Your Honor,” Mr. Clement suggested, as the courtroom tittered.

    “Maybe your perspective has changed, too, Mr. Clement,” volleyed Justice Samuel A. Alito Jr., who then questioned whether good lawyering could be bought only with immense fees.

    “Well, on that,” Mr. Clement said, “my perspective has changed, Your Honor.”

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