But she is entirely in the right in discussing Paul Clement’s actions regarding the defense of DoMA:
. . . One argument [against arguing in favor of DoMA--ed.], advanced at the Baltimore Sun, is that this is the difference between criminal and civil proceedings; the Constitution guarantees a right to counsel in criminal trials. But no firm has to take a civil case. As a descriptive matter that’s true. DOMA has no “right” to be defended. But as a normative matter it sidesteps the real question: What is the end game here? When groups pressure a firm into dropping representation for an unpopular client, is the ultimate goal to have only bad lawyers defend an unpopular law, or no lawyers at all? And what kind of legal victory would either of those ends represent?
Neither of those two goals serves the ends of the justice system. Recall that one of the reasons the Proposition 8 trial in California was so maddening to watch last year was that the legal defense advanced of the gay marriage ban was half-hearted and circular. As Linda Hirshman has pointed out, the legal defense of DOMA will be both difficult and dispiriting. What possible ends are served by having that done badly or not at all? Instead of attempting to hobble the litigation process, proponents of the DOMA litigation should celebrate an opportunity to finally air the question of equal rights for gay marriage publicly and effectively.
You can call it “educating” a law firm when you threaten it with charges of bigotry, but don’t claim that as a victory against bigotry. It’s not. Zealous advocacy means teaching America that intolerance is wrong, rather than evincing intolerance for everyone on the other side. If Seth Waxman, who will be opposing DOMA in the courts, can find nothing to complain of in Clement’s representation, there should be no complaints. DOMA should die in a court of law because it is small-minded and illegal, not for lack of a defender.
Ben Wittes makes this point when he writes: “When interest groups pressure law firms to drop such representations, they are still demanding adjudications stripped of a full record—or objecting to the right of their opponents to have adjudications at all. And if major law firms will buckle under such political pressures before defending a (rightly, in my view) disfavored federal statute, can anyone really imagine that they will not also abandon other disfavored clients?”
Don’t like the idea of the taxpayer financing the GOP’s personal hate-fest? Me neither. But that was the deal struck when the Obama administration decided not to defend DOMA itself. A lot of taxpayers dislike the idea of footing the legal bill for the defense of death row inmates or the installation of crosses on public lands. That’s what the system of justice sometimes demands.
Don’t waste time trying to explain any of this to the likes of Mark Kleiman, however. He’s too busy trying to avoid being intellectually honest and decent.