Paul Clement: A Walking Oral Argument Textbook

I was recently listening to one of my favorite SCOTUS oral arguments, a sentence for which I should not be judged.  It’s a relatively unimportant case in the grand scheme of things (except to workers at Amazon.com), but it encapsulates the brilliance of SCOTUS’s current top-dog advocate.  Paul Clement, a partner at Kirkland & Ellis, is essentially the Tenth Justice at this point—a conservative uber-litigator, former Solicitor General for the Bush administration, and generalized appellate wizard.  His arguments are legendarily crisp and effective, and his briefs read like an aged scotch.

His oral argument in Integrity Staffing Solutions, Inc. v. Busk showcases some of the qualities that make him great.  The oral argument is available here (https://www.supremecourt.gov/oral_arguments/audio/2014/13-433) and the transcript is available here (https://www.supremecourt.gov/oral_arguments/argument_transcripts/2014/13-433_o758.pdf).

Here are five of the skills that Clement demonstrates and that every advocate should try to emulate:

  1. Clement knows the universe of applicable law exceptionally well.

In this exchange with Justice Ginsburg, he deploys a fact from a dissent written in 1945.  In so doing, he makes his argument stronger and offers an anchoring point—if the Supreme Court did not object to a waiting time of over an hour in that 1945 case, it should not now object to a lesser time that Amazon’s employees face.  You can’t fake knowledge of the relevant case law this way.  You either know it or you don’t.

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  1. He combines knowledge with quick thinking, and he’s therefore able to accept help.

Not only does Clement know the law, he’s fluid enough to interweave it effortlessly into exchanges with the Justices.  Here, Justice Scalia is clearly on Clement’s side.  But rather than just idly agreeing with Justice Scalia, he takes Scalia’s hypo and anchors it back into existing law.

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In so doing, he strengthens the point that Scalia is making—and thus his own argument.  Again, none of it would be possible if Clement didn’t know the law so well (and think so quickly).

  1. He respectfully asserts himself.

Clement never takes a hostile tone with the Justices (unlike some veteran advocates), but he will cut off a bad line of questioning where he can.  Here, he redirects Justice Sotomayor before she can pull him to a point he doesn’t want to address.

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In the audio, this exchange isn’t disrespectful, just assertive.  And he ultimately manages to defang her argument before she can even make it.

  1. He redirects attempted framing.

This is one of the most important skills Clement demonstrates.  He refuses to let hostile Justices force him to accept their fundamental “frame” of a case.  By that, I mean he religiously pushes back when Justices try to put burdens on Clement’s client that Clement doesn’t think that client bears.  He also prevents Justices from ignoring the full procedural posture of the case.  Here, Justice Breyer tries to subtly flip a burden on Clement, but he rejects it.  Under the Portal to Portal Act, employees aren’t paid for activities they do after work (“postliminary activities”) unless those activities are integral and indispensable to their job.  In this exchange, Breyer focuses on making Clement’s definition of “postliminary” seem absurdly broad, until Clement points out that most postliminary work is supposed to be uncompensated unless it’s a principal activity.  Difficulties of employment law aside, the point is this:  Breyer tries to make it seem like Clement’s definition of a term is too broad, and Clement reminds him that the definition is supposed to be broad, and exceptions to his definition are just that—exceptions.  In so doing, he takes back the high ground and puts the argument back in a frame where he can win.

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  1. He’s funny but understated.

Oral advocates don’t have to be funny to be effective.  Indeed, it is far better to make no jokes than to make a joke that falls flat or offends the bench.  But an advocate who can deploy respectful, subtle humor is the best of all worlds.  In this exchange, Clement uses humor and good-naturedly embraces his role as an advocate (and his desire to win).  This is an especially amusing moment because Clement clerked for Justice Scalia, so it very much represents good-natured ribbing between a mentor and a protégé.

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Clement and his talented team do many things correctly besides these five.  But you’ll rarely see a tour de force that appears more routine than this.  And as for the result?  Clement and his team won the case.  9-0.

 

Note:  I apologize for the long layoff in posting.  I have been working on a long-term project that I will hopefully be able to share soon.

Paul Clement: A Walking Oral Argument Textbook