Brushing aside her own attorney general, Gov. Jan Brewer announced Monday she hired a former national solicitor general to be lead counsel in asking the U.S. Supreme Court to let the state begin enforcing last year's immigration law.
In a prepared statement, Brewer said Paul Clement has "an impeccable nationwide reputation for his expertise in appellate and constitutional litigation." She said he is "well-suited to lead our excellent legal team."
The move caught Attorney General Tom Horne by surprise. In fact, Horne, attending a conference of Republican attorneys general in Wyoming, told Capitol Media Services he heard of Brewer's decision just hours before the governor's announcement despite publicly stating earlier this year he was ready and able to argue the defense of SB 1070 to the nation's high court.
Several hours later, his office put out a prepared statement calling Clement "an outstanding attorney" and saying his "addition to the legal team" will help win the case. But Horne has been put in a position by Brewer where he cannot discuss the move, since she is the client and he is her lawyer.
"As you can understand, this is all we are saying," he said.
Relations between Horne and Brewer have been rocky since a separate joint press conference in the governor's office where the pair announced they were going to ask a federal judge if Arizona can enforce its medical marijuana law despite federal statutes making possession of the drug a felony.
The governor, after being hit with several questions, declared the press conference over. But Horne stayed behind, leading to complaints by gubernatorial staffers that he should have followed her lead.
Gubernatorial press aide Matthew Benson said hiring Clement - and having Horne in a support role - makes sense.
"Preparing petitions and arguments before the Supreme Court is exceptionally specialized work," he said. "Paul Clement is recognized as one of the best in the business."
Benson acknowledged that Brewer did not tell Horne about the move ahead of time, or even ask his advice as the state's top lawyer of who to pick.
"This is the governor's decision in terms of who she feels can best represent the state in defending SB 1070," he said.
The law, approved last year, is designed to give state and local police more power to detain and arrest illegal immigrants. It requires that officers question those who they already have stopped if there is reason to believe someone is in this country illegally. Another provision makes it a state crime for illegal immigrants to seek work in Arizona.
Horne had no role in the case until this point, with all the prior arguments before a trial judge and the 9th U.S. Circuit Court of Appeals taking place before he was elected attorney general last year.
Brewer had dismissed Terry Goddard, his predecessor, saying she was not convinced he would properly defend the law. That left the lead to John Bouma, a private Phoenix attorney whom Brewer brought in.
But Bouma was unable to block U.S. District Court Judge Susan Bolton from issuing an injunction last year, just days before SB 1070 was set to take effect, barring the state from enforcing key provisions. He also was no more successful last year in getting the appellate court to dissolve the injunction.
Horne, who campaigned on a promise of defending the law, said he was prepared to take control of the case.
At this point, technically speaking, the issue is not the legality of the law but only whether Bolton erred in issuing the injunction.
But Clement will have to convince the high court that the law is likely valid. That's because both Bolton and the appellate judges, in enjoining the law from being enforced, ruled that its provisions are probably preempted by federal law.
That, though, is only half the issue. To issue or sustain an injunction, a court also needs to weigh what are called the "balance of hardships," meaning who is more likely to be harmed if a law is or is not enjoined. And to this point, the courts have said the state's complaints about not being able to enforce its immigration law are outweighed by the foreign policy problems that would be created by letting Arizona have its own laws.
Clement will be paid a flat $150,000 to prepare the petition asking the Supreme Court to accept the case, and to file answers to whatever response made by the challengers of the law. The petition is due July 12.
Benson said if the justices agree to actually hear the case, the amount Clement will be paid will be worked out later.
Clement, like Bouma, will be paid out of a special defense fund the governor set up last year.
As of the end of last week, more than 45,000 people had given a total of almost $3.8 million. Deducting the bills already paid to this point left more than $1.8 million in the account.
The decision to bring in specialized counsel to argue before the Supreme Court is not unusual.
Brewer said that Clement has argued 50 cases before that court. And Bouma, who said he does not have extensive Supreme Court experience, said he was not insulted by the governor's move.