<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:21706.wais]
S. Hrg. 109-46
CONFIRMATION HEARING ON THE NOMINATION OF PAUL D. CLEMENT TO BE
SOLICITOR GENERAL OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
APRIL 27, 2005
__________
Serial No. J-109-16
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin,
prepared statement............................................. 73
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 74
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
PRESENTER
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin presenting Paul D. Clement, Nominee to be Solicitor
General of the United States................................... 2
prepared statement........................................... 71
STATEMENT OF THE NOMINEE
Clement, Paul D., Nominee to be Solicitor General of the United
States......................................................... 4
Questionnaire................................................ 7
QUESTIONS AND ANSWERS
Responses of Paul D. Clement to questions submitted by Senator
Durbin......................................................... 43
Responses of Paul D. Clement to questions submitted by Senator
Kennedy........................................................ 56
Responses of Paul D. Clement to questions submitted by Senator
Leahy.......................................................... 67
SUBMISSION FOR THE RECORD
Sensenbrenner, Hon. F. James, Jr., a Representative in Congress
from the State of Wisconsin, prepared statement................ 75
NOMINATION OF PAUL D. CLEMENT TO BE SOLICITOR GENERAL OF THE UNITED
STATES
----------
WEDNESDAY, APRIL 27, 2005
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:30 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Coburn, and Feingold.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. It is
precisely 9:30 and the Judiciary Committee will now proceed to
the nomination of Paul D. Clement, to be Solicitor General of
the United States.
Mr. Clement comes to this position with an outstanding
record in his academic work and his professional work and in
Government service. He graduated summa cum laude from
Georgetown University, received a master's in philosophy with
distinction from Cambridge, a law degree from the Harvard Law
School, magna cum laude.
He has served in the Office of Solicitor General for the
past four years as the Principal Deputy Solicitor General and
has argued more than 20 cases in the U.S. Supreme Court, which
would make any lawyer envious.
Starting the questions a little earlier than anticipated,
Mr. Clement, was that beautiful child related to you--is that
beautiful related to you?
Mr. Clement. He was, indeed.
Chairman Specter. He is, indeed.
[Laughter.]
Mr. Clement. We will see about that.
[Laughter.]
Chairman Specter. When I was sworn as an assistant district
attorney, my oldest son was 22 months, and right in the middle
of the swearing-in--it wasn't covered by C-SPAN--he rushed up
to the bar and started to make a fuss precisely as your child
did. So I think that is a good omen for all of us.
Before joining the Government, Mr. Clement headed up the
appellate practice of the Washington staff of King and
Spalding. He served as chief counsel to Senator Ashcroft, so he
is a member of the Senate family. He served as a law clerk to
Justice Scalia, and also to D.C. Circuit Judge Lawrence
Silberman.
At this point, I am going to turn the hearing over to
Senator Coburn because I have been invited to come to the White
House for a signing ceremony. But I appreciated the opportunity
to meet with you informally earlier this week and know of your
outstanding record.
Senator Coburn will preside at the hearing, and I want to
thank him for taking on this extra task. He has been very
industrious as a first-term Senator. Of course, he has been a
Senator now for almost four months, but he has put in more time
already than some Senators do in a full term or beyond. He has
been at the hearings, been at the meetings. Yesterday, we had a
lengthy hearing that he attended all of.
We are in the midst of working on a very complicated
asbestos bill and he has brought special expertise to that
issue by virtue of his dual profession, Senator and doctor. He
will have to decide, if he wants to comment, which is first and
which is second, but I do thank him for presiding at the
hearing and I now turn thegavel over to Senator Coburn.
Senator Coburn [presiding.] Thank you, Mr. Chairman.
Welcome, Mr. Clement. And thank you for those fine words,
Mr. Chairman.
I would like to recognize Senator Feingold, if I might, and
then we will continue the hearing.
Senator Feingold.
PRESENTATION OF PAUL D. CLEMENT, NOMINEE TO BE SOLICITOR
GENERAL OF THE UNITED STATES BY HON. RUSSELL D. FEINGOLD, A
U.S. SENATOR FROM THE STATE OF WISCONSIN
Senator Feingold. Thank you very much, Mr. Chairman. First,
I would like to ask unanimous consent that Senator Leahy's
statement be included in the record.
Senator Coburn. Without objection.
Senator Feingold. Mr. Chairman, it is my pleasure to be
here and to introduce to the Committee Paul Drew Clement, whom
the President has nominated to serve as Solicitor General of
the United States.
As we all know, the position of Solicitor General is an
extremely important post in our Government. It is the third-
ranking position in the Department of Justice, but because the
Solicitor Generalserves as the voice of the United States
Government at the United States Supreme Court, the position
comes with extra stature and responsibility.
Paul Clement is a son of Wisconsin and is well-qualified to
carry out these singular responsibilities. He is a graduate of
Cedarburg High School, outside of Milwaukee, a summa cum laude
graduate of the Georgetown University School of Foreign
Service, and received his J.D. magna cum laude at Harvard Law
School, where he was an editor of the law review. He also
received a master's degree from Cambridge University, in
England.
After he is graduation from law school in 1992, Mr. Clement
clerked for Judge Lawrence Silberman on the D.C. Circuit and
for Supreme Court Justice Antonin Scalia. He has worked in
private practice for the firms Kirkland and Ellis, and King and
Spalding. In between his stints at those firms, he was then-
Senator John Ashcroft's chief counsel on this Committee for two
years.
From the beginning of the Bush administration in 2001, Mr.
Clement has been the Principal Deputy Solicitor General and has
served as Acting Solicitor General since the recent departure
of Ted Olson from that position. He has argued 26 cases before
the Supreme Court over the past four years, including some of
the highest-profile cases of the past few terms, such as
Tennessee v. Lane, United States v. Booker and the Hamdi and
Padilla cases. Paul is regarded as a truly outstanding oral
advocate, one of the best in the country today.
You can see from this resume that Paul has accomplished
quite a lot in his still young career. If confirmed, he will be
the youngest Solicitor General in over 50 years, and only three
other occupants of the office in its history have been younger
than him. One of them was William Howard Taft, who became
Solicitor General when he was only 32 years old.
Mr. Chairman, I agreed to introduce Paul Clement to the
Committee not only because of his impressive resume, and
certainly because he worked as an intern during college for a
Wisconsin Senator whom I defeated in 1992. No. I am doing this
because of how he carried out his responsibilities in another
case he argued before the Supreme Court, McConnell v. FEC, the
case testing the constitutionality of the Bipartisan Campaign
Reform Act, sometimes referred to as the McCain-Feingold bill.
I am not sure how many people remember that when McCain-
Feingold passed the Senate, there was some doubt and concern
about how vigorously the Justice Department would defend it in
court. I sought and received pledges from both the Attorney
General and the Solicitor General at the time in their
confirmation hearings that they would defend the law if
Congress passed it.
When the time came for oral argument, Ted Olson defended
Title I, the soft money ban, and Paul Clement argued in favor
of the constitutionality of Title II, the provisions dealing
with issue ads. Seth Waxman, Solicitor General in the Clinton
administration, represented the bill's principal sponsors in
the argument.
Now, that was truly a legal dream team, and Paul's
performance, which I witnessed personally, was superb, every
bit as good as his two senior colleagues. He argued for 40
minutes without notes and with complete command of both the
intricacies of the statute and the legal precedents bearing on
the case. In the end, as we all know, the Supreme Court upheld
all of the major provisions of our bill, including Title II,
which most legal observers believed was the most susceptible to
constitutional challenge.
So, Mr. Chairman, it is based on personal experience that I
can say with confidence that Paul Clement will faithfully
execute his responsibilities as Solicitor General. I am sure
there will be times when I will disagree with a position he and
his office will take. That internship with Senator Kasten he
held long ago was probably a good indicator of that, but I am
certain that Paul will perform his duties with professionalism
and integrity and I am truly honored to appear on behalf today.
Thank you, Mr. Chairman.
Senator Coburn. Thank you, Senator.
Senator Kohl and House Judiciary Chairman Sensenbrenner
have asked that their statements be made a part of the record.
They will be made a part of the record, without objection.
I just have a couple of brief comments. I, too, am
supporting this nomination, even though I was very disappointed
in the Supreme Court review of McCain-Feingold in terms of the
limitation of free speech.
I would ask that you now stand and take an oath before this
Committee.
Do you swear that the testimony you are about to give
before the Committee will the truth, the whole truth and
nothing but the truth, so help you God?
Mr. Clement. I do.
Senator Coburn. Thank you. Be seated.
I just have a few questions for you, if I might, and I am
here in my capacity as a citizen of the United States, as well
as a Senator and a doctor, to answer our Chairman's comment.
You have been in the Solicitor General's office since 2001
and you have argued 26 cases. What is the change that has come
about since 2001 to now and what changes will you make in terms
of that office if you become the Solicitor General of the
United States?
Mr. Clement. Well, Senator, thank you for that question. I
think that in the time that I have been in the Office of the
Solicitor General, I wouldn't say that the office has changed
very much at all, and I think that one of the things that is
one of the really valued traditions in the Office of the
Solicitor General is the fact that there is a great continuity
in the office, there is a great tradition in the office.
As you may know, there really are only two positions in the
Office of the Solicitor General that vary from administration
to administration. There is the Solicitor General himself or
herself and then there is one Principal Deputy Solicitor
General that vary from administration to administration.
All the other lawyers in the office, all the other public
servants in the office stay from administration to
administration, and I think that continuity is really
important. And I will certainly look for ways to try to improve
the operation in small ways and to try to fine-tune operations,
but I also think that by and large I ascribe to the aphorism
that if it is not broken, then don't try to fix it. And I think
the Office of the Solicitor General, in my humble view, in any
event, is not broken, and so I wouldn't envision any major
overhaul of the office or its functions.
Senator Coburn. Thank you. I have actually erred. I should
have given you an opportunity for an opening statement, which I
will do now.
STATEMENT OF PAUL D. CLEMENT, OF WISCONSIN, NOMINEE TO BE
SOLICITOR GENERAL OF THE UNITED STATES
Mr. Clement. Well, I appreciate that, Senator. I want to
thank you and thank Senator Feingold. I am honored and humbled
to be before you today. Before I say anything further, I would
like to take an opportunity to introduce my family, at least
those you haven't met yet, to the Committee, and I would like
to start with my wife, Alexandra.
I am sure that virtually every married nominee who comes
before the Committee makes a point of saying how important
their spouse is in terms of the support that they receive from
them, and that their public service really would not be
possible without the support of their spouse, and that is
certainly true in my case.
But in my case, the very fact that Alex lets me work
outside the home is really quite remarkable because when I was
studying law up at Harvard, Alex was across the Charles River
at the business school earning her MBA. And so every day that
she allows me to practice law outside the home while she stays
home with our three boys is a personal sacrifice and an
indulgence of my interests, for which I am eternally grateful.
Our three boys were with us. Two of them have survived, it
looks like. Our oldest is Thomas Antonio. Thomas is 6-1/2 years
old and he is very happy to be here because it means a day off
from kindergarten. Theodore Gerald, or Theo as we call him, is
4 years old, and he is pretty happy to be on a day off from
preschool, as well. Our youngest is Paul Gregory, or P.G., who
made an appearance and may be with us intermittently, and he is
2 years old. All three of the boys, but especially Thomas and
Theo, have been promised Yugio cards in direct proportion to
how well they behave this morning. So we have high hopes.
My parents are not able to be here today. My mother just
had major back surgery and my father is helping her with that
recovery. So they are both back home. I know they wanted to be
here, and I just want to express that my gratitude to them for
placing me on a path that has brought me here today really
knows no bounds.
Alex and I are also joined by many friends today,
colleagues in the Office of the Solicitor General and
colleagues at my former law firm, King and Spalding. I want to
thank them all for being here and I really appreciate their
support.
As I said at the outset, I am humbled and honored to be
here today, and I am humbled, honored and grateful to the
President and the Attorney General for nominating me, selecting
me for this post. One of the reasons I am so grateful is that,
if confirmed, I would have the opportunity to continue to serve
with my colleagues in the Office of the Solicitor General.
The lawyers and other public servants in the Office of the
Solicitor General are quite literally the most talented group
of people that you can imagine. Collectively, they represent
decades of experience representing the interests of the United
States before the Supreme Court. They have been justly called
the finest law firm in the Nation. And because the people in
the office also are some of the nicest people and the most
mutually-supportive people that you can imagine, I really
personally can't imagine a better place for a lawyer to work.
One of the reasons it is such a terrific place to work is
that the office has important responsibilities to each of the
three branches in our system of separated powers. Most
obviously, the Solicitor General is an executive branch
official, and the office defends the policies and practice of
the executive branch in the courts when they are challenged.
The office quite literally sits at the crossroads of the
separation of powers as the primary vehicle through which the
Article II branch of Government speaks to Article III. But, of
course, the office also owes important responsibilities to the
Article I branch, the Congress of the United States.
Whenever the constitutionality of an act of Congress is
called into question, outside a narrow band of cases
implicating the President's Article II authority, the office
will defend the constitutionality of the acts of Congress as
long as reasonable arguments can be made in the statute's
defense.
Finally, the office also owes an important responsibility
to the Supreme Court of the United States. I have heard
reference made to the Solicitor General as the tenth Justice of
the Supreme Court. I am quick to add I have never heard that
comment made by any of the nine real Justices.
[Laughter.]
Mr. Clement. But that said, the Supreme Court itself does
acknowledge the special role of the Solicitor General in each
and every volume of the United States Reports. At the very
beginning of each volume, immediately after a listing of the
Justices, there is listing of the officers of the Court. And
even before the listing of the more obvious candidates like the
clerk of the Court, the marshal, the librarian, the reporter of
decisions, each volume lists the Attorney General and the
Solicitor General as officers of the Court.
Now, I think that reflects, in part, the reality that the
Solicitor General is far and away the most frequent litigant
before the Supreme Court. But it also reflects the reality that
the Solicitor General is an officer of the Court.
The special relationship between the Office of the
Solicitor General and the Court is one built on candor and
trust. The lawyers in the Office of the Solicitor General are
advocates, but they are advocates like no other. I think former
Solicitor General Sobeloff captured this point very well when
he said that the Solicitor General is not a neutral. He is an
advocate, but he is an advocate whose client's business is not
merely to prevail in the instant case. My client's interest is
not to achieve victory. My client's interest is to establish
justice.
I am very, very hopeful and proud to have the opportunity,
if confirmed, to continue the fine traditions of the office and
to have an opportunity to serve in an office that has such
important responsibilities to all three branches of Government.
That is considerably more uninterrupted time than the
Justices usually give me, so I thank you for your indulgence
and I would be happy to answer any of the questions you have,
Senator Coburn and Senator Feingold.
[The biographical information of Mr. Clement follows.]
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Senator Coburn. I think we just heard that the Justices
gave you 40 minutes at one time.
Mr. Clement. But it wasn't uninterrupted, I assure you.
Senator Feingold. They interrupted him plenty.
[Laughter.]
Senator Coburn. Well, thank you very much. It brings to
mind a question. How do you decide what cases you are going to
challenge? You made the statement if there is an adequate
defense based on the statute. How do you decide that?
Mr. Clement. Well, Senator, fortunately, although the
ultimate decision does rest with the Solicitor General, I don't
have to make that decision alone. And so generally when I am
considering a case where, to take the instance where an act of
Congress has been called into question, I will have the benefit
of the thinking of the agency of the Government that is most
directly affected by the statute.
So if you have a statute in the transportation area, for
example, the general counsel of the Department of
Transportation will share with the office his views or her
views. And then typically whatever litigation division in the
Department is most directly affected--generally, the Civil
Division--will also provide us with their views on the
question.
Then one of the career lawyers in our office will provide a
thorough memorandum examining the arguments on both sides of
the issue. A deputy solicitor general will then either write
their own memo or annotate that memo, and it will really be on
the basis of those memos that the decision will be made.
Now, I hasten to add, though, that it is a standard that we
would apply such that it would be a very rare act where a
Solicitor General would not defend an act of Congress. In my
time as Acting Solicitor General, I did have to make such a
decision once in the context of an appropriations rider that
asked recipients of transportation funds to engage in
effectively what was viewpoint discrimination.
After that was struck down by the district court, we made a
judgment that we simply did not have a viable argument in
defense of the statute. It was a very difficult decision. It
was a decision reached only after careful thought and study.
And as I say, that is the only time in my time as Acting
Solicitor General that I had to make such a decision.
The only time that I can remember Solicitor General Olson
making such a decision--again, I think there was only one
instance and it was in conjunction with a bankruptcy provision
that simply seemed out of step with the Court's 11th Amendment
jurisprudence in a way that we didn't think there was any
viable argument to be made in that case either.
Senator Coburn. Thank you.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Mr. Clement, you noted in your statement that when the
constitutionality of an act of Congress is challenged, the
office has the responsibility to defend that act whenever
reasonable arguments can be made in its defense. That
responsibility, of course, was the subject of my questions to
your predecessor when he appeared before this Committee and the
McCain-Feingold bill was still being considered by the
Congress. I just want to get on the record your response to a
question that I asked him.
Is there any change in your view of the office's
responsibility with respect to a statute passed by Congress if
the President when signing the bill into law expresses grave
doubts as to the constitutionality of the statute?
Mr. Clement. Well, Senator, I think that the basic analysis
that we would take would really be no different in that case. I
do think, though, that whatever prompted the President's grave
doubts would probably be part of our analysis, and I can
imagine a situation where the doubts are so grave that we
ultimately decide that a reasonable argument can't be made in
defense of the statute.
That said, though, I would think that if I consider two
factors--one, the fact that the President, who would be my
ultimate boss at this point, signed the law--and I would take
that as one factor, and then I would take the fact that grave
doubts were expressed about the constitutionality. I would say
actually the former would be more important and a factor I
would weight more heavily in thinking that there would be
reasonable arguments to be made in defense of the statute, as
opposed to the latter because I think presumably the President
himself, if he thought that there couldn't even be reasonable
arguments in defense of the statute, would be, all things being
equal, unlikely to sign the bill.
Senator Feingold. So the expression of grave doubts goes to
your analysis, not to your responsibility?
Mr. Clement. Absolutely, Senator.
Senator Feingold. Now, let me ask you sort of the flip
side. I understand that when the Department decides not to
defend a statute, it notifies the Senate Legal Counsel so that
the Senate can decide whether to intervene in the case. This
happened about nine times in the Bush administration, including
once since you became Acting Solicitor General.
Can you tell me about how that decision is made, who is
involved in making it, and what kinds of considerations go into
that decisionmaking process?
Mr. Clement. Well, Senator, I would be happy to address
that. As I was saying earlier, I think that process is one that
ultimately is a decision that the Solicitor General, or in the
one case the Acting Solicitor General has to make ultimately as
the decisionmaker.
But that said, it is the result of an exhaustive process
that starts with the various affected agencies, continues
through the litigating division at the Justice Department, and
then includes lawyers in the Office of the Solicitor General.
And at the end of that process, there is an ultimate decision
that has to be made, and as I said, it is not a decision that
is in any way taken lightly.
I can walk you through a little bit some of the thought
process I had as reflected in the memo that I sent to the
Senate Legal Counsel in the one case where I had occasion not
to defend an act of Congress, and it was a specific
appropriations provision that told the Metro and other
recipients of Federal transportation funds that they could not
run advertisements that took a pro-legalization view of
marijuana.
And it was a difficult decision because we actually could
consider--and again this is reflected in the letter that we
went to Senate Legal Counsel and to her House counterpart--we
actually could conceive of an argument to defend the statute,
which is that a recipient of Federal funding could voluntarily
decide not only not to accept pro-legalization ads, but also
could refuse to accept anti-legalization ads or ads to keep
marijuana criminalized, and in that sense could effectively
convert the Federal regulatory provision or statutory provision
from a viewpoint discriminatory one into a content-based one,
and there would at least be viable arguments at that point that
could be made.
But in confronting that analysis, it certainly occurred to
me that it would be very difficult to assume that the same
Congress that wanted to preclude funding recipients from
running pro-legalization ads would simultaneously not want to
run ads, say, from the ONDCP. So rather than make an argument
that could be made in defense of the statute, we made a
decision--I ultimately made the decision that the better course
was simply to decline to defend the statute rather than make an
argument that seemed to be likely at odds with Congress's true
intent in that case.
Senator Feingold. Thank you, that was helpful.
A last question, Mr. Chairman.
I am sure you know, Mr. Clement, that one of the most
important historical decisions ever made by a Solicitor General
had nothing to do with arguing before the Supreme Court. I am
old enough to remember--I don't know if you are; I don't think
you--in October 1973, Robert Bork served in the office you will
fill if you are confirmed.
When President Nixon ordered the Attorney General, Elliot
Richardson, and his deputy, William Ruckelshaus, to fire
Watergate Special Prosecutor Archibald Cox, they refused and
resigned. Robert Bork, as the third-ranking person in the
Department, carried out the order.
What do you think you would do if faced with a similar
situation?
Mr. Clement. Well, Senator, that is a very difficult
question, and I think it is a situation that one Solicitor
General did face and I think every other Solicitor General
would hope that they would not face, and so I certainly hope it
never comes to that. And I think it would really have to depend
on the situation that prompted the particular crisis, if you
will, that led to that situation.
I can imagine a situation where my best judgment would be
that with all the respect I would have for the Attorney General
and the Deputy Attorney General, I would have a different view
of matters. And I can certainly imagine situations where I
would have the same view that they would have of matters and
take a similar step.
I would add that my obligations may be potentially relieved
in one respect, which is, as I understand it, the Associate
Attorney General is now in the structure who would be the third
person to face that particular decision before I would. So
there would at least have to be sort of three fallen soldiers,
if you will, before the decision would come to my desk.
And that would obviously have an influence because then I
would be--if it came to me, I would already have the benefit of
the thought process of three senior Justice Department
officials whom I certainly would respect.
Senator Feingold. But you can certainly imagine a situation
where resignation would be the only proper course, could you
not?
Mr. Clement. Absolutely.
Senator Feingold. Thank you, Mr. Chairman.
Senator Coburn. Do you have any further questions?
Senator Feingold. No, Mr. Chairman.
Senator Coburn. The record will remain open for one week
for any follow-up questions. It will end at 6:00 p.m. on
Wednesday, May 4.
I have no further questions. The meeting is adjourned.
Thank you for being here.
Mr. Clement. Thank you.
[Whereupon, at 9:56 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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