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A shorter version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission.
If you want to develop a skill or talent, you should learn from the best. And when it comes to appellate advocacy, one of the all-time greats is Paul Clement, the former U.S. solicitor general and former Kirkland & Ellis partner who now has his own boutique, Clement & Murphy.
Last Wednesday, Clement appeared before the U.S. Supreme Court in Trump v. Cook. His performance was, according to Sarah Isgur of SCOTUSblog, “a master class in oral argument”—and I concur.1
In Trump v. Cook, the justices must decide whether to stay a lower-court ruling that prevented Donald Trump from firing Federal Reserve Governor Lisa Cook over unproven mortgage-fraud allegations. Based on their questions and comments at argument, the justices seemed wary of allowing the firing to go forward, at least for now—which would be a victory for Cook, as well as a rare loss for the Trump administration on the interim docket.
If the justices end up leaving Cook in place, at least some of the credit belongs to Clement and his superb presentation. Here are three tips for appellate advocates, based on my listening to the oral argument in real time and subsequently reading the transcript.
1. Listen, listen, listen.
When most people think of a great lawyer arguing before the Supreme Court, they probably imagine some silver-tongued orator, like Henry Drummond from Inherit the Wind. But as H. Rodgin Cohen of Sullivan & Cromwell, one of the nation’s top transactional lawyers, said on my podcast, a critical skill for attorneys of all types is “the ability to listen, whether to your client or to the other side, so you really understand what is going on.”
At the argument in Trump v. Cook, U.S. Solicitor General D. John Sauer argued first. But even though Clement wasn’t at the podium lectern, he was no less focused and engaged—with listening. [UPDATE (1/30/2026, 10:08 p.m.): The correct term is “lectern,” not “podium.”]
That became clear when it was Clement’s turn to stand up. He brought up questions and comments made by the justices during Sauer’s presentation and integrated them seamlessly into his own argument, using them to buttress the points he wanted to make.
But many advocates can do that. Clement went beyond this technical skill and somehow sensed, in his bones, the justices’ sense of frustration with the case. He then brilliantly channeled it back to them, encouraging them to resolve Trump v. Cook in a manner favorable to his client.
As Isgur commented during the argument, Clement “tapped into the court’s exasperation with this case,” effectively telling the justices, “This is an annoying case; I agree. That guy brought it to you, not me. So just get rid of it. Here’s 97 options to do that.”
2. Stay nimble.
It’s critical to listen as a litigator, whether you’re a trial lawyer questioning a witness or an appellate lawyer arguing before judges, so you can adjust on the fly. A common mistake for new (or even not so new) advocates is to stick doggedly to their outline for a cross-examination or oral argument—even after it’s clear that their approach isn’t working.
After the justices posed tough questions to Sauer, you might have expected Clement’s argument to be a cakewalk before a quiet bench. But as they often do in complex cases, the justices subjected Clement to a grilling as well.
Early in Clement’s argument, Justice Samuel Alito criticized the claim that conduct engaged by Lisa Cook before she joined the Fed, so-called “pre-office conduct,” can never serve as a basis for firing. Sensing the strength of Justice Alito’s skepticism, Clement didn’t dig in. Instead, he moved quickly to what he called his “backup argument,” explaining that at the common law, removing an official based on “an infamous crime” required a conviction. (Cook hasn’t been convicted of—or even indicted on—anything.)
It was a shrewd move on Clement’s part, because arguments based on the common law usually resonate well with the current, history-focused court. But after Justice Alito and then Justice Neil Gorsuch seemed unpersuaded, Clement offered “a backup to the backup”: regardless of the president’s power to remove an official, Congress always has the power to impeach an official accused of misconduct.
And Clement even had “a backup to the backup to the backup” (as Justice Elena Kagan put it). Because this case is before the court on the administration’s motion for an emergency stay, the government bears the “extraordinary burden” of showing both irreparable harm and a likelihood of success on the merits. A likelihood of success on the merits requires not just that Clement’s position be wrong, but that the government’s position be “actually right.” Considering the justices’ apparent reluctance to make conclusive pronouncements about the messy, substantive issues raised by Trump v. Cook, this argument could end up being compelling.
As Isgur put it—sounding like a sports commentator, as some of us tend to do during arguments—“this is just so brilliantly done, because everywhere Sauer looks, Clement is there. He’s painted a world where he wins on every issue up the ladder, which means that for Sauer to get to the topic, he has to defeat Clement on every single topic—which is just a tall order.”
3. Keep it conversational—and candid.
If you were to ask SCOTUS watchers for an adjective to describe Clement’s argument style, many might say “conversational”—a term that Clement uses himself. As he told me on my podcast, he views each argument as a conversation with nine justices, from a wide range of backgrounds—which means that “you’re not going to persuade them by being overly rhetorical,” and “you’re not going to persuade them by being so hyper-technical that a generalist isn’t going to appreciate the point that you’re making.”
So if you listen to Clement’s arguments, you won’t encounter a lot of jargon. Instead, you’ll hear folksy phrases you’d expect from a Midwesterner like Clement (a Wisconsin native)—such as “the game’s not worth the candle,” “music to my ears,” or the charmingly archaic “heaven forfend.”
The substance of Clement’s arguments mirrors his style: he keeps it real, and he’s unfailingly honest with the justices. If an advocate owes a duty of candor to the court, Clement fulfills it—in spades. Sometimes he’ll even “break the fourth wall,” stepping outside of his expected role to make a “meta” sort of point—in a way that highlights his honesty as an advocate, buttressing his credibility.
At one point during the Cook argument, Justice Alito asked Clement whether the court should resolve this case based on a factual ground (such as the argument that Cook didn’t engage in mortgage fraud, but simply made inadvertent errors in her paperwork). But the justice also seemed to view Clement’s position on this as self-serving: “I understood your answer to be, ‘You should do that if you’re going to find in favor of me, but you shouldn’t do it if you’re going to find the other way.’”
Instead of denying the obvious, Clement admitted that Justice Alito had a point, humorously acknowledging his response as a “heads I win, tails you lose answer.” But Clement quickly pivoted to one of his many backups: here, Lisa Cook was denied due process, i.e., not given the opportunity to present any facts in her favor. So if the justices do want this case resolved on the facts, they should send it back to the lower courts for more fact-finding—while leaving Lisa Cook in her job.
Paul Clement is a unique talent—quite possibly “the best living SCOTUS advocate today,” as Professor Rory Little of UC Law San Francisco opined during the Trump v. Cook hearing. But even if Clement might be “a god” at One First Street, in the words of veteran Supreme Court advocate Tom Goldstein, applying strict scrutiny to Clement’s arguments and drawing lessons from them can still benefit mere mortals.
UPDATE (1/31/2026, 8:16 a.m.): If you’re the type of person who appreciates posts that dispense advice, you might like these stories from the archives:
Speaking of Sarah Isgur, she has a (great) new book coming out in April about the Supreme Court, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court. It’s now available for preorder—and if you fill out this form before February 9, she’ll send you a signed bookplate to affix to your copy.
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I have listened to my share of SC arguments, and if Clement is arguing I come away impressed by him.
David, I remember your interview with him. He sounded like a decent person.
I’m not a Conservative, but if I had a case before the Supreme Court, I’d want him on my side.