House Republicans have hired former U.S. solicitor general Paul Clement to lead their defense of the ban on federal recognition of same-sex marriage, giving lawmakers the benefit of one of the nation's best-recognized appellate lawyers.
The office of Speaker John Boehner (R-Ohio) confirmed Clement’s hiring as a deadline loomed today for a filing in federal court in one of the cases abandoned by the Obama administration.
Clement, the head of the appellate practice of King & Spalding, served as solicitor general from 2005 to 2008. He received rave reviews as the federal government’s chief advocate before the Supreme Court, and since he’s left he’s built an active practice, including representation of the NFL’s owners in their ongoing labor dispute. Clement was not immediately available for comment this afternoon.
A letter dated today from Boehner to House Minority Leader Nancy Pelosi (D-Calif.) makes clear that King & Spalding will charge at least some fee for the work. Boehner hopes to recoup the House’s costs, though, using funds from the Justice Department.
“The burden of defending the [Defense of Marriage Act], and the resulting costs associated with any litigation that would have otherwise been born by DOJ, has fallen to the House,” Boehner wrote. “Obviously, DOJ’s decision results in DOJ no longer needing the funds it would have otherwise expended defending the constitutionality of DOMA. It is my intent that those funds be diverted to the House for reimbursement of any costs incurred by and associated with the House, and not DOJ, defending DOMA.”
Attorney General Eric Holder Jr. has previously criticized that idea, saying Justice Department lawyers have plenty of work to do with the funds they have. Pelosi, in a letter to Boehner in March, requested an estimate of how much the marriage litigation would cost.
In a rejoinder today, Pelosi said she still wants to know what the litigation will cost. “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,” she wrote in a letter to Boehner. (Separately, The National Law Journal has also requested a copy of Clement's contract.)
The hiring relieves the Office of the House General Counsel of the burden of defending the Defense of Marriage Act in multiple federal circuits. The counsel’s office has a handful of lawyers involved in a wide array of cases, including Roger Clemens’ indictment for allegedly lying to Congress.
Clement now stands on the opposite side of the same-sex marriage debate from another Republican former solicitor general, Theodore Olson. Olson, co-chair of the appellate practice at Gibson, Dunn & Crutcher, represents same-sex couples who are challenging California’s ban on them marrying.
Interest groups issued dueling statements on Clement’s involvement. Joe Solmonese, president of the gay-rights group Human Rights Campaign, said King & Spalding “has brought a shameful stain on its reputation” and “should be ashamed of associating themselves with an effort to deny rights to their fellow citizens.”
Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage, said: “Paul Clement is a genuinely distinguished lawyer, a former solicitor general of the United States, who we are confident will win this case. Thanks to Speaker Boehner’s actions, President Obama’s attempt to sabotage the legal defense of DOMA is not going to work.”
Updated at 5:25 p.m.