DOMA, Gay Marriage, Human Rights Campaign, Hypocrisy, King & Spalding, Litigation, Paul Clement, The Law
Demonstrators outside King & Spalding offices.
One of the saddest stories in the news today is King & Spalding’s withdrawal, after only a week, from its representation of the U.S. House of Representatives in connection with the Defense of Marriage Act.
In February, Barack Obama’s Department of Justice announced that it would not carry out its constitutional and statutory duty of defending the Defense of Marriage Act in federal court. This itself was disgraceful: DOMA was passed by the House and the Senate and signed into law by President Clinton. No administration should abandon the defense of a properly enacted statute that is, at a bare minimum, arguably constitutional, simply because the political winds have shifted. (DOJ did defend the act in 2009.)
After DOJ stopped defending the act, the House of Representatives retained former Solicitor General Paul Clement, a partner in King & Spalding, to represent it in upholding the constitutionality of DOMA. Predictably, this enraged certain homosexual activists:
Before the firm announced its withdrawal, Human Rights Campaign and Equality Georgia were planning a protest Tuesday morning at King & Spalding’s offices in Atlanta. In addition, a full-page ad denouncing the firm was set to run Tuesday morning in the Atlanta Journal-Constitution, one person familiar with the plan said.
King & Spalding promptly folded. ..
The law firm’s action was unusual, to say the least. No doubt there is precedent for a law firm abandoning a client because it comes under political pressure, but I can’t think of one offhand. Most lawyers think they are made of sterner stuff than that.
Clement, outraged, resigned from King & Spalding and fired off a letter to the firm’s management:
“I resign out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do,” Clement wrote to Hays. “I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it.
“Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. If there were problems with the firm’s vetting process, we should fix the vetting process, not drop the representation.”
As Clement noted, defense of DOMA is “extremely unpopular in certain quarters.” But lawyers represent unpopular clients and unpopular causes all the time. Many of America’s most prominent law firms lined up to represent terrorists, including those associated with the September 11 attacks, in various legal proceedings. On the left, it is apparently fine to advocate for mass murderers, but not for the House of Representatives or the traditional definition of marriage.
Greg Sargent, in the Washington Post, talked to the spokesman of the group responsible, who was gloating over a successful intimidation job.
I just got off the phone with the Human Rights Campaign, the gay advocacy group thatâ€™s in the rightâ€™s crosshairs. The groupâ€™s response, in a nutshell: Deal with it. …
Far from being abashed about this campaign, Fred Sainz, a spokesman for the Human Rights Campaign, shared new details about it. He confirmed to me that his group did indeed contact King and Spalding clients to let them know that the group viewed the firmâ€™s defense of DOMA as unacceptable.
Sainz said his group did not ask any of the firmâ€™s clients to drop the firm in retaliation for taking the case, as is being assumed by conservatives who are alleging an untoward pressure campaign. Rather, he said, his group informed the firmâ€™s clients that taking the case was out of sync with King and Spaldingâ€™s commitment to diversity, which it proudly advertises on its Web site.
â€œKing and Spaldingâ€™s clients are listed on its web site, so we did what you would expect us to do,â€ Sainz told me. â€œWe are an advocacy firm that is dedicated to improving the lives of gays and lesbians. It is incumbent on us to launch a full-throated educational campaign so firms know that these kinds of engagements will reflect on the way your clients and law school recruits think of your firm.â€
â€œWe did all of this, and weâ€™re proud to have done it,â€ added Sainz.
Jennifer Rubin identifies the key hypocrisy.
It is worth recalling the passionate words of an all-star lineup from the Brookings Institution when some conservatives objected to the Justice Department employing lawyers who represented detainees:
Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.
To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.
But, you see, the rules are entirely different when the principle at issue is a pet position of the left.