That has not lessened puzzlement over Clement, a 41-year-old conservative Washington lawyer who clerked for Silberman and later for Supreme Court Justice Antonin Scalia. Clement has tried to explain his course to the White House by claiming he feared Justice Anthony Kennedy, the Supreme Court's current swing vote, would join a liberal majority on gun rights if forced to rule on Silberman's opinion.
The more plausible explanation for Clement's stance is that he could not resist opposition to individual gun rights by career lawyers in the Justice Department's Criminal Division (who clashed with the Office of Legal Counsel in a heated internal struggle). Newly installed Attorney General Michael Mukasey, a neophyte at Justice, was unaware of the conflict and learned about Clement's position only after it had been locked in.
A majority of both houses in the Democratic-controlled Congress are on record against the District of Columbia's gun prohibition. So are 31 states, with only five (New York, Massachusetts Maryland, New Jersey and Hawaii) in support. Sen. Obama has weighed in against the D.C. law, asserting that the Constitution confers individual rights to bear arms -- not just collective authority to form militias.
This popular support for gun rights is not reflected by an advantage in Tuesday's oral arguments. Former Solicitor General Walter Dellinger, an old hand at arguing before the Supreme Court, will make the case for the gun prohibition. Opposing counsel Alan Gura, making his first high court appearance, does not have the confidence of gun-owner advocates (who tried to replace him with former Solicitor General Ted Olson).
The cause needs help from Clement in his 15 minute oral argument, but not if he reiterates his written brief. The word was passed in government circles this week that Clement would amend his position when he actually faces the justices -- an odd ending to bizarre behavior by the Justice Department.