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Former Bush solicitor general to head up SB1070 defense at Supreme Court

Paul Clement (File photo)

Former Solicitor General Paul D. Clement (File photo)

As Arizona prepares to take SB1070 to the nation’s grandest judicial stage, Gov. Jan Brewer is bringing in some big-name talent to help make her case.

Brewer on Monday named former Solicitor General Paul D. Clement, now with the Washington, D.C. firm Bancroft PLLC, as lead counsel in the state’s petition to the U.S. Supreme Court. Clement will write the state’s petition for a writ of certiorari in Arizona’s appeal of a Ninth U.S. Circuit Court of Appeals decision that upheld an injunction against two key provisions of the landmark illegal immigration law.

The state has relied on in-house counsel for other recent arguments before the Supreme Court, including successful defenses of the state’s employer sanctions law and its school tuition tax credits program.

But in Arizona’s high-profile battle with the Obama administration and the U.S. Department of Justice over states’ ability to enforce immigration law, Brewer chose an attorney with extensive Supreme Court experience and conservative credentials. And unlike in those previous cases, Brewer has a multi-million-dollar defense fund for the SB 1070 litigation. The fund, which has received thousands of donations from people across the country, had about $1.8 million as of May.

Clement served as Bush’s solicitor general from 2005 to 2008 and has argued more than 50 cases before the Supreme Court. Clement argued at the Supreme Court in McDonald v. Chicago, a watershed case in which the court ruled that the Second Amendment right to bear arms applied to the states, and in Rumsfeld v. Padilla, which challenged the Bush administration’s imprisonment of unlawful combatants. Clement is also a former clerk to Supreme Court Justice Antonin Scalia.

Clement technically already represents Arizona in one lawsuit. He is lead counsel for the 26 states, including Arizona, that are suing the federal government over the Patient Protection and Affordable Care Act. That suit, which is one of several challenging the federal health care reform law, was filed in Florida. A district court judge declared the law unconstitutional in that suit, and the matter is currently being weighed by an appellate court.

“Mr. Clement has argued some of our nation’s most significant legal cases and I’m extremely confident in his abilities,” Brewer said in a written statement. “I’m optimistic the Supreme Court will choose to hear our defense of SB1070 and certain that Mr. Clement will serve the State of Arizona well.”

Brewer spokesman Matthew Benson said the state will pay a flat fee of $150,000 for Clement and his team to write the petition for writ of certiorari and for a reply to the federal government’s response. If the Supreme Court agrees to hear the case, the state will pay a separate fee if it wants Clement to file additional briefs and present oral arguments.

Clement’s hiring is not the first time in recent history that Arizona has taken on a high-profile conservative attorney to argue a case before the Supreme Court. Kenneth Staff, the prosecutor who took on former President Bill Clinton in the 1990s, represented Arizona at the high court in 2009 in a lawsuit against the state’s English learners program.

Arizona State University law professor Paul Bender, who, like Clement, once served as principal deputy solicitor general, said Clement’s hiring could help persuade the Supreme Court to accept the SB 1070 case, which he said is not a guarantee. Bender said it is common practice for litigants to hire high-profile attorneys with Supreme Court experience when they hope to convince the court to hear a case.

“It certainly doesn’t hurt. The court knows him. It makes the case seem, if anything, more important because he’s doing it. He knows how to write a good cert petition,” Bender said.

The state must file its petition with the Supreme Court by July 11. The court is expected to decide whether to hear the case in September or October.

John Bouma of the firm Snell & Wilmer has served as the state’s lead counsel since the Department of Justice sued Arizona over SB1070 in 2010. Attorney General Tom Horne joined the state’s defense team in the case when he took office in January.

Horne, who vowed during his 2010 campaign for attorney general to vigorously defend SB1070 in court, was not consulted about Clement’s hiring. The Attorney General’s Office said Horne was only informed Monday morning of Brewer’s decision. A spokesman would not say whether Horne expected to argue the case himself or discuss other details of the lawsuit, citing attorney-client privilege.

In a statement released by the Attorney General’s Office, Horne said, “It’s important that we win the SB 1070 case. Paul Clement is an outstanding attorney and his addition to the legal team is a valuable asset to the state’s defense of this law.”

Benson said the magnitude of the case, the availability of resources and the highly specialized nature of petitioning and arguing before the Supreme Court led Brewer to the decision to hire Clement, rather than have Bouma or Horne argue the case.

“Preparing for the Supreme Court and arguing before that court is such specialized work, and Paul Clement is really recognized as one of the very best Supreme Court practitioners in the country,” Benson said. “This was the governor’s decision, and she made that decision based upon who she thought would give the state its best opportunity to win this case.”

Snell & Wilmer would not say whether Bouma was told of the decision beforehand or discuss Clement’s hiring either. Bouma’s office referred all questions about the move to the Governor’s Office.

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