While reading various reactions to last week's arguments in the Supreme Court over the constitutionality of the Affordable Care Act, in particular, criticisms of the performance by Solicitor General Verilli (and compliments toward Paul Clement), I was strangely reminded of the best Steven Seagal movie, which is Under Siege (aka "Die Hard on a Battleship"). In it, Seagal played Casey Ryback, ex-SEAL and current head cook on a soon to be decommissioned U.S. battleship that gets taken over by a bunch of terrorists led by Tommy Lee Jones and Gary Busey. Jones and Busey and their henchmen have managed to capture and lock up just about every sailor on the ship, except for Seagal and a few others who hid. Seagal then wages an insurgency to take back control of the ship.
At one point, seeing the latest mayhem that Seagal has inflicted (dead terrorists, etc.), Jones turns to a henchman played by Colm Meaney (aka Chief O'Brien on ST:TNG) and says, "Daumer, Daumer, Daumer, why didn't you hire this person? I don't know what his price would have been, but it would have been worth it!"
(start at 0:22 in the video clip)
You have to wonder if team Obama felt the same way after the oral arguments. . . . I say this not as a critic of Verilli; although it's certainly possible to get a plum federal appointment without much actual qualifications as political payback, I highly doubt that's true about the SG. This is more of a reflection of how brilliant Clement is universally acknowledged to be as a Supreme Court advocate.
Anyway, you have to wonder if team Obama was thinking, if only we had Clement on our side!
Of course, one suspects that Clement personally believes himself to have the better argument on the Commerce Clause issue. But when we had Clement here at Lewis & Clark as our Kennedy Speaker last fall, he did a lunch time presentation for our students, and one of the (many) interesting things he said was that there have been occasions when he wanted to argue one side of a case, but it was the other side that approached him for his services. He's the ultimate lawyers' lawyer in that sense -- he argues the client's cause.
So what if the Obama Administration had looked ahead to this day of reckoning before the Supreme Court, and thought, that's who we want arguing our case? Would the President have ever been willing to consider appointing Clement as the Solicitor General?
Well, for most lawyers who are Supreme Court wonks, it would be incredibly hard to turn down an offer of being the primary advocate for the United States, the so-called Tenth Justice. But since Clement has already had that experience, having served as President Bush's SG from 2004 to 2008, it would probably hold less appeal for him than for most others. And the prospect of contacting an opposition party member with such a plum prospect, only to be turned down, would no doubt be embarrassing for any administration, so I don't really think that Obama would have been willing to try even if he would've wanted Clement on his team.
Still, can you imagine, after last week's arguments, President Obama saying, "David [Axelrod], David, David, why didn't you hire Clement before the oral argument? I don't know what his price would've been, but it would've been worth it!"