Kirkland Absent from High Court Lectern After Clement (2)

Aug 16, 2023

Kirkland & Ellis LLP was noticeably missing from the list of more than three dozen law firms arguing before the Supreme Court this term.

The absence of the firm, which typically was at the top of argued cases in past terms, followed the departure last June of superstar litigator Paul Clement. He opened a boutique practice after Kirkland announced it would no longer represent clients in Second Amendment disputes.

Clement, who took former Kirkland partner Erin Murphy with him, argued three cases this term under Clement & Murphy PLLC. All three cases began when Clement was still at Kirkland. Last term, Clement argued all four of Kirkland’s cases.

“Clement is obviously one of the top Supreme Court litigators,” said Ben Heineman, a distinguished senior fellow at Harvard Law School’s Program on the Legal Profession. “Of course he helped them build the practice. He was the practice.”

Kirkland declined multiple requests to comment on its plans for its post-Clement Supreme Court work. It’s not clear if the firm has named anyone to lead that part of the practice. Clement and Murphy also declined to comment for this story.

Though Clement was only with Kirkland for six years, he racked up noticeable victories. For instance, he won a religious rights case last June for a high school football coach who lost his job after praying with players on the 50-yard line. In 2019, he convinced a majority of the justices to rule that federal courts don’t have a role to play in policing partisan gerrymandering claims.

A former US solicitor general under George W. Bush, Clement is one of only a handful of people who have argued over 100 cases before the Supreme Court. He hit that milestone while at Kirkland.

At least four firms were in similar situations as Kirkland in 2019 in what was a Big Law version of musical chairs.

Kannon Shanmugam jumped from Williams & Connolly after decades with the firm to start a Supreme Court and appellate practice at Paul Weiss. Lisa Blatt then left Arnold & Porter and returned to Williams & Connolly. Arnold & Porter snagged John Elwood from Vinson & Elkins.

Both Shanmugam and Elwood argued once this term, while Blatt appeared at the lectern four times.

Vinson & Elkins, however, had a team of talented attorneys that included Jeremy Marwell to take Elwood’s place, said Christopher Popov, co-head of Vinson & Elkins’ complex commercial litigation practice.

Marwell, who joined Vinson & Elkins in 2010, said the firm has always tried to create meaningful opportunities for lawyers beyond the most senior people. “It makes good sense from a business perspective and I personally think it’s the right thing to do in terms of developing more junior lawyers and the next generation,” he said.

Popov said the departure of a brand name lawyer can actually create opportunities for growth within a firm. After Elwood left, he said, Vinson & Elkins prioritized growing its litigation practice and being a preeminent litigation firm with top appellate lawyers.

“We knew we weren’t going to let our appellate section walk out the door with a single partner departure,” Popov said.

Shanmugam, who wouldn’t comment on the situation at Kirkland, said most Supreme Court practices start with a high-profile high court veteran and build around them.

“It sounds almost biblical,” Shanmugam said.

Where that’s not the case, Shanmugam said there are going to be attorneys at a firm who their colleagues seek out to handle their appeals.

“One of the keys to building a successful appellate practice is finding those people,” he said.

Shay Dvoretzky, who started Skadden, Arps, Slate, Meagher & Flom LLP’s Supreme Court and appellate practice in 2020, said it makes a lot of sense to have an experienced advocate as an anchor.

“But the practice’s long-term success depends on having more than one person who argues major appeals before the Supreme Court and lower courts,” he said. “A successful appellate practice needs to develop a deep bench of talented attorneys.”

Shanmugam emphasized that Supreme Court practice is typically a small part of a firm’s appellate work.

“It is very hard to have a commercially successful practice that depends on Supreme Court work,” Shanmugam said, noting that high court arguments are becoming “an ever-smaller pie.”

Most firms view having an appellate practice focused primarily on federal circuit and state supreme courts as the best way to serve their clients, Shanmugam said.

The court has heard roughly 60 or fewer argued cases in recent terms compared to more than 70 in years past.

Other firms that fell off the list of those appearing two times or more at the Supreme Court included Kellogg Hansen, Orrick, and Paul Weiss. They each had three cases last term, but one or fewer this term.

Two other firm attorneys argued more frequently this term than Clement. Blatt argued four cases and Hogan Lovells’ Neal Katyal, five. Dvoretzky argued three cases.

Kirkland still has matters pending before the Supreme Court now. Partner George Hicks has asked it to review a class action case, but the justices aren’t likely to decide whether to take it up until June.

— With assistance from Roy Strom.

To contact the reporters on this story: Lydia Wheeler in Washington at [email protected]; Kimberly Strawbridge Robinson in Washington at [email protected]

To contact the editors responsible for this story: Seth Stern at [email protected]; John Crawley at [email protected]

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