If you want to develop a skill or talent, you should learn from the best. And when it comes to appellate advocacy, one of the all-time greats is Paul Clement, the former US solicitor general and former Kirkland & Ellis partner who now has his own boutique, Clement & Murphy.
Last Wednesday, Clement appeared before the US Supreme Court in Trump v. Cook. And his argument was, according to Sarah Isgur of SCOTUSblog, “a master class in oral argument.” I agree.
In Trump v. Cook, the justices must decide whether to stay a lower-court ruling that prevented President Donald Trump from firing Federal Reserve Governor Lisa Cook over unproven mortgage-fraud allegations. Based on their questions and comments at argument, the justices seemed wary of allowing the firing to go forward, at least for now—which would be a victory for Cook, as well as a rare loss for the Trump administration on the interim docket.
If the justices end up leaving Cook in place, at least some of the credit belongs to Clement and his superb presentation. Here are three tips for appellate advocates, based on my close observation of his argument.
1. Listen, listen, listen.
When most people think of a great lawyer arguing before the Supreme Court, they probably imagine some silver-tongued orator, like Henry Drummond from “Inherit the Wind.” But as H. Rodgin Cohen of Sullivan & Cromwell, one of the nation’s top transactional lawyers, once told me, a critical skill for attorneys of all types is “the ability to listen, whether to your client or to the other side, so you really understand what is going on.”
At the argument in Trump v. Cook, US Solicitor General D. John Sauer argued first. But even though Clement wasn’t at the podium, he was no less focused and engaged—with listening.
That became clear when it was Clement’s turn to stand up. He brought up questions and comments made by the justices during Sauer’s presentation and integrated them seamlessly into his own argument, using them to buttress the points he wanted to make.
But many advocates can do that. Clement went beyond this technical skill and somehow sensed, in his bones, the justices’ sense of frustration with the case. He then channeled it back to them, encouraging them to resolve Trump v. Cook in a manner favorable to his client.
As Isgur commented during the argument, Clement has “tapped into the court’s exasperation with this case,” effectively telling the justices, “This is an annoying case; I agree. That guy brought it to you, not me. So just get rid of it. Here’s 97 options to do that.”
2. Stay nimble.
It’s critical to listen as a litigator so you can adjust on the fly. A common mistake for new (or even not so new) advocates is to stick doggedly to their outline for a cross-examination or oral argument—even after it’s clear that their approach isn’t working.
After the justices posed tough questions to Sauer, you might have expected Clement’s argument to be a cakewalk before a quiet bench. But as they often do in complex cases, the justices subjected Clement to a grilling as well.
Early in Clement’s argument, Justice Samuel Alito criticized the claim that conduct engaged in by Cook before she joined the Fed can never serve as a basis for firing. Sensing the strength of Alito’s skepticism, Clement didn’t dig in. Instead, he moved quickly to what he called his “backup argument,” explaining that at the common law, removing an official based on “an infamous crime” required a conviction. (Cook hasn’t been convicted of—or even indicted on—anything.)
It was a shrewd move on Clement’s part, because arguments based on the common law usually resonate well with the current, history-focused court. But after Alito and then Justice Neil Gorsuch seemed unpersuaded, Clement offered “a backup to the backup”: Regardless of the president’s power to remove an official, Congress always has the power to impeach.
And Clement even had a backup to the backup to the backup. Because this case is before the court on the administration’s motion for an emergency stay, the government bears the “extraordinary burden” of showing both irreparable harm and a likelihood of success on the merits—which means not just that Clement’s position is wrong or questionable, but that the government is “actually right,” on the substantive arguments.
3. Keep it conversational—and candid.
If you were to ask SCOTUS watchers for an adjective to describe Clement’s argument style, many might say “conversational”—which Clement uses himself. As he told me when I had him on my podcast, he views each argument as a conversation with nine justices, from a wide range of backgrounds.
So if you listen to Clement’s arguments, you won’t encounter a lot of jargon. Instead, you’ll hear folksy phrases you’d expect from a Midwesterner like Clement (a Wisconsin native), such as “the game’s not worth the candle,” “music to my ears,” or—from the Cook argument—“heaven forfend.”
The substance of Clement’s arguments mirrors his style: He keeps it real, and he’s unfailingly honest with the justices. Like a talented actor, he’ll even “break the fourth wall,” stepping outside of his expected role to make a broader point—in a way that highlights his honesty as an advocate, buttressing his credibility.
At one point during the Cook argument, Alito asked Clement whether the court should resolve this case based on a factual ground (such as the argument that Cook didn’t engage in mortgage fraud, but simply made inadvertent errors in her paperwork). But the justice also seemed to view Clement’s position on this as self-serving: “I understood your answer to be you should do that if you’re going to find in favor of me, but you shouldn’t do it if you’re going to find the other way.”
Instead of denying the obvious, Clement admitted that Alito had a point, humorously acknowledging his own position as a “heads I win, tails you lose answer.” But Clement quickly pivoted to one of his many backups: Here, Lisa Cook was denied due process, i.e., not given the opportunity to present any facts in her favor. So if the justices do want this case resolved on the facts, they need to send it back to the lower courts for more fact-finding—while leaving Lisa Cook in her job.
Paul Clement is a unique talent—quite possibly “the best living SCOTUS advocate today,” as Professor Rory Little of UC Law San Francisco opined during the Trump v. Cook hearing. But even if Clement might be “a god” at One First Street, in the words of veteran Supreme Court advocate Tom Goldstein, applying strict scrutiny to Clement’s arguments and drawing lessons from them can still benefit mere mortals.
David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”
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