Bradley Trustee a Gun Rights ‘Superstar’

Principal Deputy Solicitor General of the United States Paul D. Clement with Vice President Dick Cheney. Photo taken 3/14/2003. (Public Domain)

Paul Clement grew up in the metro area, in Cedarburg, where he attended its public schools and was on the high school debate team. He served as the Solicitor General of the United States for three years under Republican President George W. Bush and has argued over 100 cases before the United States Supreme Court since 2000, “more than any lawyer in or out of government,” as his bio notes.

He’s been called a legal superstar, “the best lawyer of his generation,” who should have been appointed to the Supreme Court, but never will be because he’s litigated too many controversial cases. “When other lawyers speak about Clement, they just gush,” as Nina Totenberg reported for National Public Radio.

But Clement is also a board member of the Bradley Foundation, and his possible involvement in the foundation’s funding of groups that filed pro-NRA amicus briefs in gun rights cases has raised questions of a conflict of interest. Clement has been very involved in gun rights cases, winning the watershed New York State Rifle & Pistol Association Inc. v Bruen decision, whereby the Supreme Court greatly expanded gun rights. Adding more controversy is the role of questionable research that may have helped Clement win.

The Bruen decision was a 6-3 ruling by the Supreme Court in 2022 which overturned the Sullivan Act, the famous New York State law established in 1911 requiring applicants for a concealed carry pistol license to show “proper cause,” or a special need distinguishable from that of the general public. The court ruled this was a violation of Second Amendment’s right to bear arms.

The majority decision by Clarence Thomas created a new standard, that courts should evaluate gun regulations not in consideration of the public good, but in light of the “historical tradition of firearm regulation.” This is “gutting” gun regulations, a Politico story noted: “more than a dozen state and federal laws have been invalidated in whole or in part since the Bruen decision. Thirty percent of civil cases and nearly 4 percent of criminal cases that have cited Bruen have resulted in the invalidation of gun control provisions, among 284 total decisions addressing Second Amendment claims.”

Bruen, of course, might have been decided differently if not for three conservatives appointed to the court by Donald Trump. But the decision was also influenced by a longterm National Rifle Association (NRA) strategy of spending countless millions to support a flood of amicus (friend of the court) briefings arguing to overturn gun regulations. The impact of the NRA’s “amicus machine” could be seen in the Bruen decision where at least 12 of the 49 pro-NRA briefs filed in the case were by groups or individuals who received financial support from the NRA, according to an investigative story jointly published by The Trace and Politico.

“Some recipients collected several million dollars from the NRA during that period and before filing briefs in Bruen,” the story documented. “Only one of those 12 briefs disclosed the connection, meaning that neither the justices nor the public were told that 11 of these ostensibly independent voices owed their livelihoods in part to the NRA, the interest group behind the case.”

The story also found that Milwaukee’s Bradley Foundation, the largest funder of conservative policy-making in the country, was among the funders of this effort. The foundation made grants totaling $2 million in 2020 and 2021 to groups that filed pro-NRA amicus briefs in Bruen, including the Independence Institute, which received $300,000 during those two years, and the Claremont Institute, which received $200,000.

Which means Clement served on the board of the foundation that helped fund groups writing amicus briefs supporting the position he argued before the Supreme Court. Did he vote for the funding? “Clement did not respond to requests from comment” from The Trace and Christine Czernejewski, the foundation’s director of communications, “declined to answer when asked whether Clement had abstained from approving the payouts.”

“Almost all of Bradley’s grants to the Bruen amicus filers were for ‘general operations,’ according to the foundation’s website,” the story noted. But did the foundation know the groups intended to spend the money this way? And was Clement, one of the nation’s top litigators, who would have known more about this issue than any other Bradley board member, asked for his opinion on the merits of the funding? The Bradley Foundation has never been transparent about such deliberations.

Clement would have no doubt known about a 2007 Supreme Court rule requiring more transparency about amicus briefs, a rule prompted by concerns that litigants were silently financing favorable briefs. It requires amicus filers “to disclose whether any other entity — and especially parties in a case or their attorneys — have made a ‘monetary contribution’ to the ‘preparation or submission’ of a brief,” the story noted.

Paul Collins, a professor of legal studies and political science at the University of Massachusetts, Amherst, suggested that this rule raised questions about Clement’s role as a Bradley board member.“If Clement approved grants to organizations that filed briefs backing his own client in a Supreme Court case, he’s probably in compliance with the letter of the rule, but not with its spirit,” Collins told The Trace.

Meanwhile, questions have arisen about research that may have influenced judges handling gun rights cases like Bruen. A New York Times story has documented the outsized role of research by William English, a little-known political economist at Georgetown University. English “conducted a largest-of-its-kind national survey that found gun owners frequently used their weapons for self-defense,” research “deployed by gun rights activists to notch legal victories with far-reaching consequences,” the story noted.

During oral arguments in the Bruen case, Justice Stephen Breyer said he worried that creating a sweeping right to carry firearms in public could increase deaths of innocent people, and in answer Clement referred Breyer to English’s research.

But the Times found English “has received tens of thousands of dollars as a paid expert for gun rights advocates, and his survey work, which he says was part of a book project, originated as research for a National Rifle Association-backed lawsuit.”

English sounds very much like an academic hack for hire, who has “increasingly drawn scrutiny in some courts over the reliability and integrity of his unpublished survey… and his refusal to disclose who paid for it. Other researchers say that the wording of some questions could elicit answers overstating defensive gun use, and that he cherry-picked pro-gun responses. His research “just sort of came out of nowhere, posted online without going through formal peer review, and by a guy most of us had never heard of,” said Joseph Blocher, co-director of the Center for Firearms Law at Duke University.

Government lawyers tried to talk with English last year after his research was cited in a lawsuit seeking to overturn Washington State’s ban on assault weapons. “But Dr. English did not respond to emails, phone calls or a certified letter, and a process server bearing a subpoena could not find him at the university or his home, where someone inside ‘looked at the door, then turned away,’ according to court records,” the story reported.

Clement’s success in the Bruen decision created controversy in legal circles, as the DC-based, 3,000-lawyer megafirm he worked for, Kirkland & Ellis, announced after the case that the firm would no longer represent clients in Second Amendment cases. In response, Clement and his partner on such cases, attorney Erin Murphy said they would leave Kirkland to start their own small litigation firm.

“We couldn’t abandon our clients simply because their positions are unpopular in some circles,” the two wrote in an Op Ed for the Wall Street Journal entitled “The Law Firm That Got Tired of Winning.” The National Review blamed the whole thing on the “progressive cancel culture, deeply hostile to the Court’s new direction and intolerant of free-speech principles… spreading from campuses out into the professions, the media, Big Business, nonprofits, and almost all other elite institutions.”

But the publication noted that “many of Kirkland’s lawyers and clients” thought the Bruen decision “would bring more gun killings or give the firm a bad image or both.”

After it was issued, the Bruen decision was assailed by some legal scholars, with one ranking it among “the most intellectually dishonest and poorly argued decisions in American judicial history.” And that was before the role of paid research and paid amicus briefs in this decision, and others it influenced, was documented. However impressive Clement’s legal talents, his big victory in Bruen is now trailed by a very foul odor.