Bush Superlawyer Paul Clement Signs On To Defend DOMA

Paul Clement was U.S. Solicitor General from 2004-2008

U.S. House Speaker John Boehner has decided on former Bush Administration Solicitor General Paul Clement to represent the Congress' interest in defending the so-called Defense of Marriage Act (DOMA) in federal court. Clement is a well-known Supreme Court advocate (he succeeded Perry v. Brown Republican superlawyer Ted Olson in the Solicitor General position) and is rumored to make over 5 million dollars a year at  the law firm of King & Spalding and charge as much as $1,000 per hour. Clement has reportedly argued more than 50 cases before the United States Supreme Court.

Clement's defense will not be cheap, as DOMA has been declared unconstitutional in two cases before the 1st U.S. Circuit Court of Appeals, the Department of Justice has decided that the statute is unconstitutional and there are around 12 jurisdictions in which DOMA is being challenged in court.

Former House Speaker Nancy Pelosi  sent a letter to Boehner in response to the current Speaker's actions, reproduced below:

April 18, 2011

The Honorable John A. Boehner
Speaker of the House 
H-232, The Capitol
Washington, D.C. 20515 

Dear Mr. Speaker:

Thank you for your response earlier today to my letter of March 11, 2011 concerning litigation relating to the Defense of Marriage Act (DOMA).  My letter had requested that you provide me with the cost to the House and to taxpayers resulting from the decision of the Republican members of the Bipartisan Legal Advisory Group (BLAG) to hire outside counsel to represent the House in support of the DOMA.  You note that President Obama and Attorney General Holder have determined that DOMA is unconstitutional, a conclusion I share, and have declined to engage in further judicial proceedings in defense of the law.  As you may know, presidents have acted similarly in the past on at least 50 instances since 1979.  

Unfortunately, your letter did not respond to the central question in my March 11th letter: the cost to taxpayers of hiring outside legal counsel.  Again, I am requesting that you disclose the cost of hiring outside counsel for the 12 cases where DOMA is being challenged.  

Press reports indicate that the House, at your direction, will intervene today in the Windsor case, which is in a federal court in New York.  Ms. Edie Windsor spent more than 40 years with her partner, Ms. Thea Spyer, and they were married in 2007.  When Ms. Spyer passed away Ms. Windsor was unable to claim the federal estate marital tax benefit because of DOMA and the federal government imposed estate taxes of more than $360,000 on the money left to her.  This case is a prime example of the injustice perpetuated by DOMA on millions of American families.  

According to reports, a contract engaging Paul D. Clement to serve as the outside counsel reportedly was forwarded to the Committee on House Administration, although not to the Democratic members or staff of the Committee.  Mr. Clement, a former Solicitor General of the United States, is a partner in the Washington firm King & Spalding where he is in charge of the national appellate practice.  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.

The House of Representatives need not enter into this lengthy and costly litigation.  Contrary to the assertion in your letter, a BLAG determination against House involvement in the litigation – which was the position of Democratic Whip Hoyer and me – would not have allowed the constitutionality of the law to “have been determined by a unilateral action of the President.”  As you know, only the courts can determine the constitutionality of a statute passed by the Congress.  

Thank you again, and I look forward to working together with you on behalf of our country.

best regards,


NANCY PELOSI
Democratic Leader

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