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Paul Clement on Pandemic Arguments, Moot Courts, and Scalia

Kirkland partner Paul Clement spoke with Bloomberg Law regarding remote arguments during the pandemic and how he prepares for them.

  • Former U.S. solicitor general argued at every court level during pandemic
  • Recently argued pro bono for DNA testing in Tennessee innocence case

Even Supreme Court veteran Paul Clement has had to adjust how he approaches oral arguments during the pandemic even though he has appeared before the justices more than 100 times in his career.

Bloomberg Law spoke to the Kirkland & Ellis partner and former U.S. solicitor general about the pandemic-prompted remote argument phenomenon, how he prepares for them, and what his former boss, the late Justice Antonin Scalia, might have thought about the way the court is handling arguments these days.

This conversation took place after Clement argued virtually in the Tennessee Court of Criminal Appeals where he’s pressing, pro bono, for DNA testing on behalf of the estate of Sedley Alley, who was executed in 2006 but may be innocent.

The interview has been edited for clarity and length.

Bloomberg Law: What’s your argument experience been like during the pandemic?

Paul Clement: If I had my druthers, I’d rather be in person in front of a judge. No matter what the format is, whether it’s one judge or nine justices, you do lose something when you can’t argue in front of them. When you argue on the phone, you don’t get the visual clues that you get in person.

But even if you’re arguing by video, you still can’t recapture the experience. Particularly because I think in every one of the arguments that I’ve done, even if it’s a video argument, if there’s more than one judge, they haven’t been sort of co-located on a single bench. They’re dialing in individually. And part of what you get as an advocate in an argument before a multi-judge panel is you get a feel for how the judges are interacting with each other.

Sometimes, particularly in the Supreme Court, you get a question from one justice but you’re every bit as interested in how another justice reacts to the question, and you can see that if they’re all in one building and you can take it all in. But if you’re just having a one-on-one exchange with a single justice, which is kind of what you get with the Supreme Court’s current format, you lose that.

But there are certain advantages. My practice is busy, and not having to travel to Jackson, Tennessee, last week probably allowed me to do one or two other things that I wouldn’t have been able to do if I were spending a day traveling there and back.

I think the most dramatic impact is at the Supreme Court, where, in order to accommodate nine justices in a telephonic format, they’ve gone to this seriatim method of asking and answering questions, which has got its pluses and minuses as well, but it’s very different from the pre-Covid normal.

BL: Do you think any of the new practices are going to carry over when they’re back in the courtroom?

PC: I could definitely see the possibility of the simultaneous release of the audio being here to stay. But even that I’m not sure of, because I do think that’s more of a necessary consequence of the telephonic format than it is something that the court independently came upon. But I’d be very surprised if the court preserves this seriatim format when it goes back to a new normal that hopefully doesn’t look too much unlike the old normal.

BL: How have you changed your preparations?

PC: The basic process hasn’t changed that much. But the big changes for me have been in the sense that, when you moot a case, you want to try to reproduce the real argument you’re going to have.

Once I could get my head around what the new format was going to be, it became clear that, to do these moots, the moots should be telephonic, and the moots should at least in part be the same seriatim order.

What I’ve come to, having done this a couple of times now, is I do about half-and-half on the seriatim. I do a round of seriatim so I can get used to what that feels like and what kind of questions emerge from that. But I do feel like you don’t get as many questions in that format, and part of what you’re looking for in a moot court is to get the hard questions out on the table. So I feel like, let’s do about half seriatim and then let’s jump into a more free-for-all.

And I know not everybody’s done this. I know plenty of people think it’s better to do the moot court over Zoom with a little bit of video. But I’ve taken the view that, for a moot for a telephonic argument, you really ought to do it telephonically. If you’re not going to get the visual clues in the real thing, then there’s no reason to get the benefit of the visual clues when you’re doing a practice run.

BL: You clerked for Justice Scalia, who was famously a big part of the court’s free-for-all. What do you think he would have made of this new format?

PC: That’s a great question and not one I’ve heard before. He would go along because it’s necessary to go along. But I think he would hate it. And I do think he would have a little bit of trouble not asking a follow-up question.

And it probably makes sense because I do think that, historically, part of the free-for-all nature of Supreme Court arguments today can really be traced back to Justice Scalia joining the court in 1986.

Justice Scalia was famous for asking questions and then, if he heard the advocate say something in response to a different justice that Justice Scalia perceived contradicted that advocate’s answer to Justice Scalia earlier, he would almost always jump in and say something like, “You can’t say that, because when you answered me you said ‘X.’”

If he were still with us he would be very senior, so he’d get his chance early in the seriatim process, so that part of it wouldn’t bother him. And I think he would be fine understanding that this isn’t optimal but it’s a necessary accommodation to the telephonic format. But I think fifteen minutes after he asked a question, when he heard the advocate say something inconsistent to another justice, I think that’s what would have caused Justice Scalia the most heartburn.

Reproduced with permission. Published Feb. 22, 2021. Copyright 2021 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bloombergindustry.com>