1. One note about Judge Ho appointing Paul Clement as amicus: When SCOTUS appoints amicus, they ask amicus to argue a particular position (one that neither party is advancing). Judge Ho's order, conversely, doesn't ask Clement to present a particular position. - ThreadSky

theglipper.bsky.social • 1 day ago

1. One note about Judge Ho appointing Paul Clement as amicus: When SCOTUS appoints amicus, they ask amicus to argue a particular position (one that neither party is advancing). Judge Ho's order, conversely, doesn't ask Clement to present a particular position.

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theglipper.bsky.social•1 day ago

2. So if Clement does argue against dismissal, that will give ultra-conservative credibility to the argument. Another possible outcome, however, is that Clement will agree with DOJ and Adams—at which point Judge Ho will be even further boxed in.

theglipper.bsky.social•1 day ago

3. I view this appointment as more analogous to a court appointing a neutral expert (under Federal Rule of Evidence 706)—it certainly contemplates that the appointee will take a different position, but it's not guaranteed.

theglipper.bsky.social•1 day ago

4. You can see the contrast with the SCOTUS order that Judge Ho quotes. In Seila Law, SCOTUS "appointed Paul Clement to defend the argument below as amicus curiae"—he was assigned a specific position. That's conspicuously not the language that Judge Ho used here.

theglipper.bsky.social•1 day ago

5. My other note is that while Clement obviously has vast, deep experience at DOJ representing the United States, his experience in criminal cases—even at SCOTUS—is relatively limited. And I'm pretty sure he's never tried a criminal case.

theglipper.bsky.social•1 day ago

6. So while Clement may have a lot of expertise and experience with respect to the separation of powers, I wouldn't call him an expert in criminal law.

theglipper.bsky.social•1 day ago

7. If you wanted a fancy SCOTUS advocate but with genuine expertise in criminal law, you'd appoint someone like Michael Dreeben (who argued literally 100 criminal cases at SCOTUS) or Jeff Fisher (who is more or less the Dreeben of the criminal defense bar).

emptywheel.bsky.social•1 day ago

Do you think there's any way Clement would argue against dismissal with prejudice, which IMO is the most obvious if wildly imperfect solution?

theglipper.bsky.social•1 day ago

Dunno!

realbenisons.bsky.social•1 day ago

maybe

except Judge Ho invited other amicus briefs

I suppose he'll accept at least a couple of them, and they will offer other perspectives

nickfish.me•1 day ago

Do federal judges have a budget to appoint amicus like this? I assume Clement would be paid for his work, but maybe I'm wrong?

theglipper.bsky.social•1 day ago

I don’t think he’s being paid. An assignment like this is super prestigious and is treated like pro bono (or client development) work.

theglipper.bsky.social•1 day ago

(I don’t know that for certain, but that’s my assumption.)

profsteed.bsky.social•1 day ago

I’ve been appointed to present arguments at CA5 and it’s voluntary — the court asks if you’re willing to do it before appointing you, and it is unpaid.

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