JUSTICE: Judge Ho’s Decision To Appoint Paul Clement In United States v. Adams.

From time-to-time, the federal government declines to defend a judgment in a pending Supreme Court case. In such cases, the Court will appoint an amicus to defend the judgment below. In other words, the amicus is not arguing his own personal views on the law, but is instead defending what the lower court did.

This approach makes some sense when there is an actual lower-court opinion. But this approach does not make sense in a trial court. The Court appointed Paul Clement to “present arguments on the Government’s Motion to Dismiss.” What kind of arguments? The order does not say. Maybe Clement will agree with the government. Maybe he won’t. Who knows? In effect, the Court has appointed Paul Clement to give Paul Clement’s opinion on the issue. Clement is a friend of the Court, to be sure. But unlike most amicus, he is being elevated to the status of a party. I think Article III jurisdiction demands adversity, and appointing an amicus to argue his own views does not suffice for adversity. For all we know, Clement will agree with the government, and there still will be no adversity.

In candor, I am a bit befuddled by this decision. I know Judge Sullivan appointed an amicus in the Michael Flynn case. That is certainly a precedent, but not a particularly good one.

There is another element to discuss here. It is pretty obvious the Court appointed Clement to have a well-known conservative (potentially) argue against the Trump Administration. Judge Ho took a page from the Seila Law playbook, in which Circuit Justice Kagan selected Clement. . . .

Will Clement’s appointment here work out for Judge Ho? Well, unlike with Seila Law, Clement is not forced to defend any particular judgment. He will give his own opinion. And I have to think that Judge Ho did not inquire about those views in advance. If he did, that would be extremely problematic.

Judges are acting unjudicial.