Pretty damned cool. In the latest Nordyke briefs, former Solicitor General Paul Clement reversed his position in Heller. Says Calguns Foundation Chair Gene Hoffman:
Many of you saw my criticisms of certain decisions around the McDonald Oral Argument as it related to NRA and their choice of counsel. I still find that episode in bad taste and form, but I want to offer an apology to one portion of that incident.Paul Clement and Jeffrey Bucholtz argued for the United States as Solicitor General and Deputy Solicitor General in Heller. Mr. Clement asked for the divided argument in McDonald and one can argue that only Mr. Clement could have succeeded to divide Mr. Gura’s time – as he did. At that time I was suspicious as I remained very unhappy with Mr. Clements argument as US SG in Heller and I still see both incidents as ill advised.That said it takes a big person to throw one’s self under the bus. Yesterday (8/18) NRA filed a brief authored by Paul Clement and Jeffrey Bucholtz. Again, Mr. Clement argued for the US SG’s office in Heller and Mr. Bucholtz was at the table that day. In today’s NRA brief, they explained how their argument was wrong and that means that intermediate scrutiny should not apply to the review of laws under the Second Amendment (emphasis added):Quote:
Terminology aside, however, Justice Breyer’s approach in substance was simply intermediate scrutiny. Justice Breyer relied (see id. at 2852) on cases such as Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180 (1997), and Thompson v. Western States Med. Center, 535 U.S. 357 (2002), which explicitly apply intermediate scrutiny. Even more revealingly, Justice Breyer invoked Burdick v. Takushi, 504 U.S. 428 (1992), the case on which the United States principally relied in advocating that the Court adopt intermediate scrutiny. See Br. of U.S., Heller, at 8, 24, 28. Because Justice Breyer’s interest-balancing amounted to intermediate scrutiny and the Court rejected it (and reaffirmed that rejection in McDonald), it would be inappropriate for this Court to adopt intermediate scrutiny as the standard for judging restrictions on the right to keep and bear arms. I’m glad that Mr. Clement and Mr. Bucholtz are zealously advocating for the right to arms – even when it means admitting personal error.
-Gene
This is one of those issues that non-attorneys don’t generally understand (until and unless they spend a lot of time around attorneys anyway).
In our system, the attorney is the advocate for their clients interest, no matter what their own interests and beliefs are.
The fact that Mr. Clement can argue against Heller (as capably as could have been done given the paucity of substance to the governments position), then argue for McDonald, then argue a different but related position for Nordyke, and do so capably; is a credit to him as an attorney.
There’s a particular bit of wisdom specific to formalized debate (and the legal system is in large part similar):
If you can’t argue the other side of the debate and win, you can’t argue your own side and win.
Chris is correct. I worked with the then-famout debate team at Portland State College in 1964-65 as a “taxi-squad” debater. As such a “tackling dummy” for the famous debate team, I had to be able to argue either side.
It’s an eye-opener to be able to go either way on a major question, but you learn to think, as your opposition presents it’s case, of little faults in YOUR argument that would support theirs, and you stay away from those.
BTW, Mr. Clement’s position changing might have had more to do with the firestorm generated at the NRA Board level by the previous position he’s now reversed, than any wisdom HE generated.
You raise a very valid point. I appreciate how you presented it.