From DOMA to Hobby Lobby, Paul Clement knows what it’s like to argue in front of the U.S. Supreme Court.
Clement, former U.S. solicitor general who argued many notable cases including Burwell v. Hobby Lobby and United States v. Windsor, spoke on Friday about the particular challenges he faced during his legal career involving 75 cases in front of the Supreme Court.
These challenges included presenting cases in front of nine justices who each took a unique approach to the interpretation of the constitution. Clement struggled to argue on behalf of his client when the primary focus of the court is to set the law for the rest of the nation to follow.
“If you can combine these two concepts, then I think you can start to understand the relatively unique dynamic of arguing in front of the Supreme Court,” Clement said. “Because you have to get to five (votes), and you have to do it with nine justices who may view these issues entirely through distinct lenses.”
This, combined with the Supreme Court’s lack of interest in the individual client, poses a particularly difficult challenge for a lawyer whose primary job is to advocate in the best interests of the client, Clement said.
“At the end of the day, they really don’t care about your case or your client,” he said. “They are really using your case as a vehicle to develop a broader rule on an issue of importance, and I think that is something that one always has to keep in mind.”
However, despite this disconnect between the court’s objective and the advocate’s responsibility, as well as the broad implications of the court’s decisions, Clement said that the best place to start when formulating an argument is with the interests of the client, especially if that client happens to be the United States government.
“To me, at least, the key to doing the job right is to start with where are the interests of the U.S.? Where are the interests of the U.S. government?” he asked. “That really ought to constrain what you do.”
Clement said this holds true even in widely publicized and controversial cases.
“Governments are the takers of property, they are not the ‘takees’ of property,” he said. “Governments are potential establishers of religion, not objectors to the establishment of religion. … You (have to) come at it from that perspective.”
Regardless of his experience, Clement admitted that he “absolutely” gets nervous every time he comes before the Supreme Court. For Clement, nerves keep him from becoming complacent and force him to continue preparing up until the day he appears before the justices.
“And if I ever stop getting nervous, I’m gonna start doing something else,” he said, “because I don’t think that you can argue in front of the SCOTUS, those justices with all their different jurisprudence and all their incredibly impressive and thoughtful and probing questions. I don’t think you could do it if you weren’t nervous.”
Wayne Dillingham, a UT College of Law alumni from the Class of 1983 and former lawyer for the FBI, said he hopes the law students present at the lecture come away with a more human perspective of what it’s like to practice law at the highest level.
“In a forum like this, talking to law students, a question like ‘Were you nervous?’ brings a certain humanity to the question,” Dillingham said. “They need to know what the practice of law is at an extremely high level, and they need to know a little bit more about the practice of law from a human perspective.”
