Bush Lawyer to Defend DOMA

UPDATE: House Republicans have recruited former solicitor general Paul Clement to represent the government in federal cases challenging the Defense of Marriage Act.

Described by colleagues as a formidable attorney, Clement served as solicitor general under President George W. Bush from 2005 to 2008. He is now a partner in the Washington, D.C., office of King and Spalding, where he focuses on appellate cases, constitutional litigation, and strategic counseling.

"He's one of the top five lawyers in town," said a Washington appellate attorney who has worked both with and against Clement in litigation. "If you put up a list of candidates for this [case], it's not at all a surprise that he was chosen. He's well liked -- left, right, and center. One thing he's known for is arguing before [the U.S. Supreme Court] without notes."

House Republicans, who weeks ago announced their intention to defend DOMA in court after Atty. Gen. Eric Holder said the Obama administration's Justice Department would no longer do so, have a Monday deadline to intervene in Windsor v. United States of America in U.S. district court for the southern district of New York.

In that case, plaintiff Edie Windsor sued after the federal government refused to recognize her marriage to Thea Spyer, who died in 2009. As a result of DOMA, Windsor was forced to pay estate tax -- a six-figure bill she would have been exempt from were her marriage recognized.

According to his firm's website, Clement has argued more than 50 cases before the U.S. Supreme Court. In 2005 he was appointed U.S. solicitor general, replacing Theodore Olson, who is now the co-lead attorney in the case challenging Proposition 8, the California ballot initiative that stripped gay couples of the right to marry.

While the Obama administration has come under fire by conservatives for its February decision to no longer defend DOMA in federal court, Clement during his SG tenure himself declined to defend a federal law -- one prohibiting mass transit agencies that receive federal funds from permitting ads on buses and subways supporting medical marijuana in 2004, according to the Human Rights Campaign.

Clement is also working with attorney David Boies, Olson's co-lead counsel in the Prop. 8 case, on an unrelated matter concerning the NFL's labor dispute, which has caused a lockout of players in the league. A Boies spokeswoman did not respond to requests for comment.

Chad Griffin from Americans For Equal Rights, which is heading up the Prop. 8 challenge with Olson and Boies, said Monday that defending the law would place Clement "on the wrong side of history."

He added, "There is no question that DOMA discriminates against gay and lesbian Americans. It is un-American to deprive a group of citizens of their fundamental constitutional right to marry, and causes irreparable harm to them and their families. I believe that just like the attorneys and elected officials who fought in the 1960s against the Lovings' right to marry in Virginia, Mr. Clement will find himself on the wrong side of history in defending DOMA."

In March a majority of the five-member House Bipartisan Legal Advisory Group -- Boehner, Majority Leader Eric Cantor, and Majority Whip Kevin McCarthy -- voted to authorize the House general counsel to intervene in multiple federal lawsuits against DOMA as well as retain outside attorneys.

"Had the BLAG not taken this action, the constitutionality of the law would have been determined by a unilateral action of the President," Speaker Boehner wrote to House minority leader Nancy Pelosi on Monday.

Responding to news that Clement had signed a contract for the DOMA litigation, Pelosi wrote in response, "I would like to know when the contract with Mr. Clement was signed, and why a copy was not provided to Democrats on the Committee."

"The House of Representatives need not enter into this lengthy and costly litigation," Pelosi wrote to Boehner. "[A Bipartisan Legal Advisory Group] determination against House involvement in the litigation -- which was the position of Democratic Whip [Steny] Hoyer and me -- would not have allowed the constitutionality of the law to 'have been determined by a unilateral action of the President.' As you know, only the courts can determine the constitutionality of a statute passed by the Congress."

A graduate of Georgetown and Cambridge universities as well as Harvard Law School, Clement clerked for Judge Laurence H. Silberman of the U.S. court of appeals for the D.C. circuit and for Justice Antonin Scalia of the U.S. Supreme Court.