Yet another example of how divorced from reality the so-called “Reality-Based Community” is; I told you that Kleiman is bad at playing lawyer. The background story can be found here, with comments from Paul Clement that make far more sense than anything found in Kleiman’s screed on this issue. Read the whole thing.
Of course, it doesn’t take much to disagree strongly with the Defense of Marriage Act–as I do–and to state, at the same time, that DoMA deserves its day in court. F. Scott Fitzgerald famously stated that “[t]he test of a first rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.” Kleiman, as we see, has failed the Fitzgerald Test. But there are plenty who have passed it. See, for example, Benjamin Wittes:
For what it’s worth, I hate the Defense of Marriage Act and always have. I want it repealed and will shed no tears if it gets struck down in the courts. On its face, moreover, what happened today between former Solicitor General Paul Clement and his now-ex-law firm, King & Spalding, has nothing whatsoever to do with the subject matter of this blog. Yet I think it’s important today to stand up for what Clement did–that is, resigned when King & Spalding this morning pulled the plug on his defense of DOMA–and to insist that it actually does have something to do with the subject of this blog.
Barely a year ago, I found myself writing this statement in defense of Justice Department attorneys who had previously represented Guantanamo detainees. For present purposes, the important passages are the following:
The American tradition of zealous representation of unpopular clients is at least as old as John Adams’s representation of the British soldiers charged in the Boston massacre. . . . The War on Terror raised any number of novel legal questions, which collectively created a significant role in judicial, executive and legislative forums alike for honorable advocacy on behalf of detainees. . . .
Good defense counsel is . . . 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.
These points all apply to this case as well. Sometimes, the politically unpopular client is the House of Representatives, not a Guantanamo detainee. Sometimes, the contested legal questions are not ones related to counterterrorism but involve marriage and equality and tradition. But good counsel is still critical to ensuring that tribunals have access to the best arguments and most rigorous factual presentations before making crucial decisions. 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?
King & Spalding, under pressure from gay activists, has dropped its agreed representation of Congressional officials who want to defend the constitutionality of DOMA. [Adler @ Volokh]
Just so we’re clear: it’s okay for law firms to represent Islamic terrorists (who, at the end of the day, just want to massacre gays), but House Republicans are beyond the pale.
When law firms were under criticism from Bush administration attorney Cully Stimson for their zealous pro bono representation of Guantanamo detainees, the outrage against Stimson (who was forced to resign) was overwhelming: doesn’t he know that everyone deserves a lawyer, and these lawyers are just defending procedural niceties? How dare someone criticize lawyers for representing unpopular clients? Those procedural niceties apparently only apply when the cause is one the left approves of.
[. . .]
(As I’ve stated earlier, I disagree with DOMA as a public-policy matter, believe that the Supreme Court will eventually declare it unconstitutional, but believe the politicization of the issue is appalling.)
. . . Theodore Olson, the prominent Republican attorney who made headlines when he agreed to challenge California’s same-sex marriage ban, praises Clement’s “abilities, integrity, and professionalism.” Olson, who like Clement was a solicitor general during the George W. Bush administration and is a star Supreme Court advocate, tells Washingtonian.com, “I think it’s important for lawyers to be willing to represent unpopular and controversial clients and causes, and that when Paul agreed to do that, he was acting in the best tradition of the legal profession.”
Seth Waxman, a partner at WilmerHale who served as solicitor general during the Bill Clinton administration, agrees. “I think it’s important for lawyers on the other side of the political divide from Paul, who’s a very fine lawyer, to reaffirm what Paul wrote. Paul is entirely correct that our adversary system depends on vigorous advocates being willing to take on even very unpopular positions. Having undertaken to defend DOMA, he’s acting in the highest professional and ethical traditions in continuing to represent a client to whom he had committed in this very charged matter.” Waxman’s firm is fighting against DOMA in one of the lawsuits challenging the statute.
. . . King & Spalding is willing to defend Guantanamo detainees, free of charge (and rightfully so), but it apparently lacks the courage to defend controversial legislation and honor commitments to clients once retained.
When some conservatives attacked private law firms and threatened retaliation for defending accused terrorists, the bar responded with outrage — and rightfully so. (My own posts on the subject can be found here and here.) At the time, we heard all the same arguments we are hearing now from HRC and its defenders — the right to legal representation does not entail the right to representation from any particular lawyer; attorneys should be held accountable for who they choose to represent; attorneys should be punished for defending the wrong side; and so on. Similar arguments have been made throughout history in efforts to discourage representation of unpopular clients and causes. (Indeed, I would not be at all surprised to learn that law firms and prominent were once discouraged from defending homosexuals who were persecuted for their sexuality.) Those arguments were wrong in the past, and they are wrong now.
Paul Clement is to be commended for his courage and honor — whether or not he wins his case against DOMA. Even those who support same-sex marriage (as I do) should be thankful for attorneys like him who are willing to defend unpopular laws and positions, and disappointed at a large law firm’s willingness to cave so quickly. Indeed, King & Spalding has given existing and prospective clients reason to wonder whether it will stand firm if asked to defend unpopular or potentially objectionable positions on their behalf. A law firm’s reputation, once diminished, is not so easily restored.
For those of us who believe the law requires marriage equality for gays and lesbians, the firm’s decision to drop the DOMA matter is indeed, as Ben Smith of Politico writes, “a real victory for supporters of same-sex marriage — and mark[s] what seems like real marginalization for its foes.” But as a lawyer who recently worked in the Supreme Court and appellate practice group of a major national law firm, I’ve found myself uncomfortable with the demonization of Clement and K&S and with the insistence by some gay-rights supporters that defending DOMA’s constitutionality is not only legally wrong but morally unconscionable. Those who would label lawyers like Clement as (at best) amoral mercenaries do not understand how the world of public-law appellate litigation works.
I don’t know Clement well; we’ve talked professionally on a couple of occasions, and I had the experience of litigating and arguing against him in a Supreme Court case two years ago. In that case, my firm represented a county government that was being sued by two men who claimed they had been the victims of misconduct by county prosecutors, resulting in alleged wrongful convictions and imprisonment. Clement represented the plaintiffs pro bono at the Supreme Court. The case settled before decision, and the plaintiffs received $12 million.
I have no first-hand information about how Clement got involved in that case. My best guess is that he took it not because he is inherently skeptical of prosecutors and government power (his legal career and political credentials suggest otherwise) but because it was a high-profile case involving interesting, unresolved questions of law. It is not uncommon for law firms that specialize in Supreme Court practice to take cases pro bono or for reduced rates as a way of maintaining name recognition and stature in that small and competitive niche of legal practice. (Several prominent Supreme Court practitioners wrote amicus briefs pro bono supporting our client’s position in the matter I argued against Clement.)
Similarly, I have no first-hand information about Clement’s decision to take on the defense of DOMA (for which King & Spalding was going to get paid, albeit at a reduced rate). Clement is certainly a conservative, and he always seemed quite comfortable defending the Bush administration’s policies as SG. But I think it would be wrong and unfair to assume he must be some sort of anti-gay ideologue. I have no doubt that some of his clients in Congress might fairly be described that way. But every constitutional lawyer knows there is a basic difference between whether something is sound policy, and whether it violates the Constitution. Clement’s job in defending DOMA (he reportedly will continue the representation through another law firm) is about the latter question.
[. . .]
I also think Clement was correct when he wrote in his resignation letter that his “thoughts about the merits of DOMA are as irrelevent as my views about the dozens of federal statutes that I defended as Solicitor General,” and that “[d]efending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”
As Jonathan Adler writes, “Sanders is not only an opponent of DOMA. He was also Indiana state coordinator for the Human Rights Campaign from 1998–2002 and a member of the Obama campaign’s national LGBT steering and policy committee.” So much for Kleiman’s claim that this is merely “political litigation,” with its commensurate implication that opinions on the issue run down partisan lines, or that the case merely pits bigots against non-bigots.
Really, if you know anything about the law, and legal ethics, you realize that the question before Clement was a simple one, and that the call he made was entirely correct. Too bad Mark Kleiman knows nothing about the law and legal ethics, and decided to write a blog post showing his ignorance off to the world.