Paul Clement, In Appreciation

Each year as the Supreme Court’s term ends in late June, Slate’s main legal-issues writer, Dahlia Lithwick joins with Walter Dellinger, head of mega law firm O’Mebeny & Meyers’ national appellate practice, and a former head of the Office of Legal Counsel in the Clinton administration, in a weeklong discussion about the Court’s recent opinions, their effects, and the apparent internal dynamics among the justices during the term. This year, they’re joined by Paul Clement, head of mega law firm King & Spaulding’s national appellate practice and solicitor general during George W. Bush’s second term.

Dahlia began the discussion last week by welcoming Clement to the group and expressing her deep admiration for him.

I share Dahlia’s admiration of Paul Clement, but not just because he is a brilliant legal analyst and has an uncanny ability to argue that analysis incredibly cogently—both traits he shares with my favorite Supreme Court litigator, Jeffrey Fisher—but also because as solicitor general he occasionally had the government take positions as an amicus that departed from robotic Republican ideology, and did so also in at least one case recently as a private practitioner.

I still recall vividly the elation that I and (I know) others felt in 2006 when as solicitor general he filed an amicus brief for the government urging the Court to grant a certiorari petition filed on behalf of an autistic child and his parents in a case called Winkelman v. Parma City School District. The case presented the issue of whether the parents of a handicapped child could serve as surrogate parties on behalf of their child in a lawsuit against a school board, claiming a violation of the Individuals with Disabilities Education Act, when the parents and child were not represented by an attorney because (although middle class) they could not afford one. Legal fees would have cost tens of thousands of dollars. The lower federal appeals court had threatened to dismiss the lawsuit unless the parents retained counsel to represent the child.

The Court did grant the certiorari petition. Clement then filed an amicus brief for government supporting the Winkelmans’ claim that they and their son were entitled to access to court without having to retain counsel first.

Justice Kennedy wrote an eloquent and unanimous opinion for the Court ruling in favor of the parents and the child.

Later Clement, as a lawyer in private practice, brought his very considerable personal prestige to a case called Perdue v. Kenny A, in which he represented Kenny A., one of 3,000 abused and neglected children in Georgia’s foster-care system, and the children’s lawyer, who a lower federal court had awarded a larger-than-normal attorney’s fee under a federal statute that provides for the award of attorneys’ fees in successful civil rights lawsuits such as that one. The Court effectively ruled against the Kenny A. petitioners, in an opinion that barely disguises that that is what the Court did.

So much of conservative Republican jurisprudence—far, far more than the general public is aware—centers around simply (very simply, actually) denying most people access to court at all in constitutional or statutory civil rights cases. Paul Clement obviously does not share the right’s affection for that agenda.