Paul Clement Paul Clement, speaking at the Federalist Society's Seventh annual Executive Branch Review Conference, on May 8, 2019. (Photo: Diego M. Radzinschi / ALM)

Former George W. Bush Solicitor General Paul Clement of Kirkland & Ellis will defend the single-director structure of the Consumer Financial Protection Bureau at the U.S. Supreme Court this term, arguing in the closely watched case at the invitation of the justices after the U.S. Justice Department abandoned defending the agency.

The high court issued an order Wednesday announcing Clement's "invitation" to brief and argue the case. The justices agreed last week to hear Seila Law v. CFPB, a major test of the president's power to fire the heads of independent agencies. The consumer bureau director, who serves a five-year term, can only be fired for cause, not at-will. The court has not set an argument date.

Clement, who has argued more than 95 high court cases, is likely to face off against Kannon Shanmugam, the appellate leader at Paul, Weiss, Rifkind, Wharton & Garrison who was counsel of record on Seila Law's petition at the Supreme Court. Shanmugam is challenging a ruling from the U.S. Court of Appeals for the Ninth Circuit, which upheld the lawfulness of the consumer bureau's single-director design.

A former clerk to the late Justice Antonin Scalia, Clement has argued broadly for business community interests at the Supreme Court, and his defense of the consumer bureau would put him at odds—at least in this case—with groups such as the U.S. Chamber of Commerce and others that have questioned the power of the CFPB director. Republicans on Capitol Hill have long lambasted the consumer bureau.

Justice Elena Kagan serves as the "circuit justice" for the Ninth Circuit, overseeing administrative matters. The circuit justice generally is responsible for picking a lawyer who will argue in situations where a friend-of-the-court is needed to defend a lower court decision. It was not immediately clear if that was how Clement was chosen. Clement was not reached for comment Wednesday.

The Justice Department and the consumer bureau, now led by a Senate-confirmed Trump appointee, Kathy Kraninger, have taken sides with Seila Law in its challenge to the consumer bureau. The Justice Department and consumer bureau under the Obama administration had fought cases challenging the independence of the bureau, born from the Dodd-Frank Wall Street Reform laws of 2010.

The Justice Department had suggested the court appoint an amicus curiae to defend the Ninth Circuit's decision.

For many years, the Supreme Court turned to former law clerks to argue positions that one side or the other had abandoned. Last year, the Supreme Court went outside those ranks for the first time in more than a decade when it picked Atlanta solo practitioner Amy Weil to argue the Social Security case Culberston v. Berryhill.

 

Read more:

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CFPB, Changing Stance, Backs Law Firm Fighting Agency's Independent Design

How Justice Thomas Picked Atlanta Solo Amy Weil for Coveted Amicus Argument

D.C. Circuit's Brett Kavanaugh Doubles Down on Criticism of CFPB