Florida Attorney General Pam Bondi's Role in NFIB v. Sebelius

An excerpt from Unprecedented: The Constitutional Challenge to Obamacare (2013)

President Trump's new nominee for Attorney General is Pam Bondi, the former Florida Attorney General. I wrote about Bondi in some detail for my 2013 book, Unprecedented: The Constitutional Challenge to Obamacare.

Florida Attorney General Bill McCollum left office on January 3, 2011. Five months earlier, he had lost the Florida Republican gubernatorial primary to the eventual winner, Rick Scott. His bid to win the governor's mansion by opposing Obamacare didn't pan out. In fact, most of the attorneys general who joined the suit in Florida in 2010 were unsuccessful in obtaining higher office. South Carolina Attorney General Henry McMaster, who began the initial challenge against the Cornhusker Kickback, lost his bid for the governorship in 2010. Nebraska Attorney General Jon Bruning withdrew his candidacy for the Senate. Washington Attorney General Robert McKenna was defeated in the governor's race in 2012. Only Pennsylvania Attorney General Tom Corbett would go on to win the governor's mansion in Harrisburg in 2010.

McCollum was replaced by the newly elected Pam Bondi. Shortly before [District Court Judge] Vinson's opinion was issued [in February 2011], Bondi was faced with her first decision: should the twenty-six states involved in the suit obtain new counsel or stick with David Rivkin? For Bondi, the NFIB's hiring of Jones Day "accelerated the decision to switch." Looking ahead to the eventual end game, an attorney from the Florida Attorney General's office told me that the key question would be "who would argue at the Supreme Court."

Bondi was not as fond of Rivkin as McCollum was. More importantly to Bondi, Rivkin had never argued before the Supreme Court. Though it was an "agonizing decision" to "switch horses," the attorney general decided "it was not going to be Rivkin." All of the other attorneys general agreed to change counsel. Rivkin understood the decision and took it graciously, calling it a "typical Washington thing."

Bondi wanted "the best chance to win" the case with a top Supreme Court litigator. At its beauty contest, Florida interviewed over a dozen potential Supreme Court advocates. Florida did not consider Ted Olson of Gibson, Dunn, & Crutcher, who was President Bush's solicitor general and had argued Bush v. Gore and dozens of other cases before the Court. Despite his prolific record for conservative legal causes, Olson's work in challenging the constitutionality of Proposition 8 and supporting same-sex marriage was a red flag and cause for concern among the Republican attorneys general. Otherwise, Olson "would have certainly been in the running." Florida considered Maureen Mahoney and Gregory Garre of Latham & Watkins, as well as Bartow Farr (who would ultimately be appointed by the Supreme Court to argue an issue the government abandoned).

Eventually, the contest was narrowed down to three finalists: Paul Clement of Bancroft PLLC; Miguel Estrada of Gibson, Dunn & Crutcher; and Chuck Cooper of Cooper & Kirk.

Bondi flew to Washington to personally interview Clement. She "really liked [Clement's] demeanor" and thought he "had it all." With fifty arguments before the Court and an "incredibly eloquent" style, he was the "package deal." There was "no question" that Clement, and his superlative associate Erin Murphy at Bancroft, would be the team. Bondi told Supreme Court reporter Joan Biskupic that Clement "shared our passion, and he was confident we could win." And he came with an attractive price tag. The states gave Clement a flat fee of $250,000 to be shared by the twenty-six states.

And the rest is history.