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Solicitor General shares insight on highest court

February 25, 2008
As U.S. Solicitor General, Paul Clement has argued nearly 50 times before the United States Supreme Court on issues as varied as campaign reform, medical marijuana, the access of disabled people to public buildings, and the military detention of American citizens on American soil.

But there’s something that never changes when standing before the highest U.S. court: fear.

“You get more comfortable the more you argue before the Supreme Court, but you never get too comfortable,” Clement told first-year law students at the Sandra Day O’Connor College of Law during a session Feb. 12 with dean Patricia White. “People ask, do I still get nervous? And my answer is, ‘Of course.’ If that ever changes, I’m going to get into a different line of work.”

Clement, the Solicitor General since 2005, said his office represents the executive branch of the government before the court, which accepts about 1 percent of the more than 7,000 Writ of Certiorari petitions it receives yearly.

“We’re better off if we self-select to make sure the petitions we file in the Supreme Court are the most important in the United States, and therefore are more likely for the Supreme Court to take,” he says. “And the proof is in the pudding: we have approximately 70 percent of our petitions granted, compared to the 1 percent chance for the average lawyer.”

To prepare for a case, the Solicitor General’s office conducts two moot courts involving its lawyers and lawyers from agencies most familiar with the case, Clement said.

“They take people with tremendous technical expertise who may talk in a series of acronyms or technical terms, which may be hard to grasp and, without losing any accuracy, translate it into terms that are more accessible for the justices.”

Among its other functions, Clement’s office performs the same detailed analysis on about 2,000 cases a year that government lawyers want to appeal to the Supreme Court from lower courts. They need permission from the Solicitor General to do that.

Occasionally, the office becomes a party to litigation if there is sufficient federal interest to justify it, Clement said. And, the Supreme Court justices ask the Solicitor General’s Office to get involved in about 20 cases a year.

“When they ask, we can’t refuse,” he quips. “Some say the Solicitor General is the 10th justice, but I’ve never heard any of the nine real justices make that statement. Others say we’re the 35th law clerk, and that’s probably more like it.”

Clement told the students the importance of oral argument depends on the written work that goes along with it.

“Oral argument matters a lot if you’ve written a good brief to support it.”