Throughout the Federalist Society National Lawyers Convention, which we attended last week, various members and leaders of the group revelled in its reputation for being part of the “vast right-wing conspiracy” (in the immortal words of Senatrix Hillary Rodham Clinton).
We’re going to play along. We have a few write-ups of conference events that we’ll be posting, and we’re titling this series of posts From the Belly of the Beast.
Last week we mentioned how we got to meet Solicitor General Paul Clement (at right), the federal government’s lead advocate before the Supreme Court. We provide a quick account of his remarks to the Society, after the jump.
Note: In our prior post, we badly botched — we’re talking John Kerry-style botchery — a description of Solicitor General Clement’s record of Supreme Court appearance. These two comments set the record straight: Clement is 40 years old, and he has had 36 Supreme Court oral arguments, making him just four arguments short of matching his age.
Warning: The rest of this post contains that dreaded thing known as “substantive legal discussion.” And there’s not much in the way of humor to leaven the proceedings. So read on at your own risk, and don’t complain if it’s a little dry.
The theme of this year’s conference was “Limited Government.” General Clement began by noting that a lecture about limited government from the lawyer who argued McConnell v. FEC and Gonzales v. Raich “could be a little rich.” He went on to note, however, that even lawyers whose job is to defend government statutes and regulations can do so in a way that is respectful of limited government principles.*
He discussed a few of those methods:
1. Clear statement rules. E.g., urge courts to require a clear statement of congressional intent when interpreting statutes that might encroach upon state or local authority.
2. Not taking a position. Sometimes the federal government deliberately declines to stake out a position in a case before the Supreme Court, even when it would be permitted to do so. E.g., the federal government declining to file an amicus brief in support of the respondent city in the controversial eminent domain case, Kelo v. New London.
Clement noted that even if you don’t like Kelo, the reaction to the decision — the operation of the democratic process, through state and local legislation limiting the power of eminent domain — has been healthy for democracy. Since Kelo, over thirty states have passed laws limiting the exercise of eminent domain. When courts don’t constitutionalize controversial issues, democracy can run its proper course.
3. Refraining from exercising regulatory authority. The federal government can support limited government principles by not seeking to exercise its regulatory authority in areas where it might have a valid claim of such authority. E.g., the greenhouse gases lawsuit (coming before the SCOTUS this Term).
4. Reminding courts of the limits of judicial authority. The federal government has sought to do this in various “war on terror” cases. A number of issues related to the war on terror are not appropriate for judicial resolution, and the federal government has not hesitated to make this point. In addition, aggressive enforcement of standing doctrines can limit the cases in which courts exercise judicial power.
On the whole, Solicitor General Clement’s remarks were thoughtful and thought-provoking. He’s also an excellent speaker: his voice is loud, clear, and well-modulated. He’s very easy to listen to. He speaks a little quickly, to be sure; but then again, that’s okay in a room of lawyers.
One commenter suggested that Paul Clement might someday sit on the Supreme Court. At 40, he’s a little young right now. But in a few years, if there’s a Republican in the White House, we could easily see this genial genius being apointed to the naton’s highest court.
* “General Clement” — is this kosher? We’ve heard some arguments over whether it’s appropriate to refer to Attorneys General and Solicitors General this way. We recall reading a thread on some other blog about this. If you have thoughts on this issue, or a link to the blog we’re thinking of, please share in the comments.
Update: Wow, that was fast. As various commenters have noted, the thread we were thinking of appeared at the Volokh Conspiracy (in a post by Orin Kerr, which also includes a link to this paper by Michael Herz).
Earlier: A Quick Update from the Fed Soc Convention