Meet the (Temporary) New Attorney GeneralPaul Clement, the solicitor-general of the United States, will step in as acting attorney general when Alberto Gonzales finishes boxing up his memories on September 17. (You know, the ones he told the Senate he didn’t have.) Clement isn’t likely to stay in office very long, as President Bush intends to appoint a permanent replacement for Gonzales, but for an unspecified amount of time, Clement will be the nation’s chief law enforcement official. (The acting attorney general can remain in office for up to 210 days starting from the departure of his Senate-confirmed predecessor, Mike Allen reports; but this is, to say the least, unlikely.) So that raises the question: Who is Paul Clement, anyway?
You might say he’s… a conservative. Primarily a legal scholar an attorney in private practice, Clement clerked for two of the most conservative judges in the country, Lawrence Silberman of the D.C. Circuit Court of Appeals and Supreme Court Justice Antonin Scalia. He came to the solicitor-general’s office in 2001 as the deputy SG on the strength of serving on John Aschroft’s Senate staff, and for helping construct the winning argument in Bush v. Gore. It was something of a consolation prize: Ashcroft unsuccessfully tried to make Clement chief of the Office of Legal Counsel, but was blocked when the White House backed Jay Bybee for the position.
According to a 2004 Legal Times profile, Clement’s consistent conservatism hasn’t stopped him from winning the respect of his ideological opposites:
Indeed, in D.C.’s clubby Supreme Court Bar, where reputations are built over a lifetime, Clement seems to have achieved remarkably early success.
“He’s one of the best I’ve ever seen,” says O’Melveny & Myers partner Walter Dellinger, who served as acting solicitor general from 1996 to 1997.
“Whenever I think of an argument from Paul, the one word that springs to mind is clarity,” Dellinger adds. “He has an extremely precise and clear intellect. Paul is never murky in thought or expression.”
Indeed, at his Senate confirmation hearing in 2005 to become solicitor general, Clement received high praise from leading Bush-administration inquistor Russ Feingold (D-WI) for his “superb” 2003 defense of Feingold’s campaign-finance reform before the Supreme Court. Feingold vouched for Clement’s “professionalism and integrity” even when the two men disagreed.
One area where Feingold and Clement apparently diverge is on executive power. Clement’s views of the president’s wartime powers appear to be broad. He’s argued that the administration can hold American citizens as enemy combatants, without guarantees of trial. (When asked by hyper-conservative Judge J. Michael Luttig if he really was prepared to say the U.S. is a “battlefield” in the war on terrorism, Clement replied, “I can say that, and I can say it boldly.”) However, it’s unclear whether he was assenting to such perspectives or merely representing his client, and his ex-colleagues haven’t come to a consensus. Clement was understandably cagey in addressing the question in his Legal Times interview:
“If you’ve got a statute to defend, it doesn’t much matter how you would have voted on the statute if you were a congressman. You’re not,” Clement says. “Your job is to marshal the best argument for the defense of the statute or the policy that gets the job done.”
That means it’s hard to know whether Clement would be inclined to stand up to President Bush in the event of a seeming abuse of power, as did a previous conservative acting AG, James Comey. Depending on how fast Bush can move his nominee through the confirmation process, Clement might not be around long enough to cast much of a shadow in the Justice Department. But with the Attorney General now given the power to, for instance, order up surveillance on foreign-to-domestic communications with a minimum of judicial oversight — and with the Senate looking for clear signs that the Gonzales Era at DOJ is over — Clement’s independence, or lack thereof, may very well become his legacy, however abbreviated.
