Yesterday, Attorney General Eric Holder defended former Solicitor General Paul Clement's decision to quit his law firm in order to defend the constitutionality of the law barring federal recognition of same-sex marriage. Clement said that he was resigning "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."
Holder backed him up:
"Paul Clement is a great lawyer and has done a lot of really great things for this nation. In taking on the representation--representing Congress in connection with DOMA, I think he is doing that which lawyers do when we're at our best," Holder said during a roundtable with reporters at the Justice Department. "That criticism, I think, was very misplaced."
Holder also compared the criticism of Clement to the attacks on Justice Department lawyers for their past work for detentainees at Guantanamo. "It was something we dealt with here in the Department of Justice...The people who criticized our people here at the Justice Department were wrong then as are people who criticized Paul Clement for the representation that he's going to continue," Holder added.
I don't agree with the Gitmo comparison for reasons I enumerated yesterday, particularly the possibility that if DOMA is successfully defended it will impact the lives of millions of people in ways that ensuring proper defense for those accused of crimes would not. But I still agree with Dahlia Lithwick that the principle here is sound: The rule of law is best served when both sides of a legal dispute are offered the best possible representation. I'll admit I find the idea of homophobia becoming socially toxic satisfying, but the danger here is that attacking a firm for taking a controversial case just means that fewer high-profile firms will take controversial cases -- including those with unpopular causes that should be championed.
I found John Aravosis' reaction to be particularly wrongheaded:
What is Eric Holder doing freelancing in the defense of anti-gay bigots? Then again, Eric Holder is no friend of civil rights. He spent two years not only defending DOMA when he didn't have to, he even had his agency outright lie to the entire world about that defense. We have no choice but to defend the law in court, Holder had his people lie to us repeatedly and publicly. Holder then had his people go to court and use one of George Bush's own DOMA briefs to defend the law. Holder had his people invoke incest and pedophilia to justify anti-gay prejudice. And Holder claimed he knew nothing about the anti-gay anti-marriage effort in Maine, one week before the vote to repeal our rights, when he was in the state. With a track record like that against any other minority, Holder would have been out on his ass long ago. But because our attorney general keeps taking swipes at gays and lesbians, somehow it's okay.
So with all due respect, no one cares what the Obama administration's biggest defender of homophobia Eric Holder has to say about DOMA or its GOP defenders.
First, Aravosis' contention that Holder is "no friend of civil rights" implies an extremely limited perspective from which he's viewing Holder's tenure as attorney general. Holder came into office with a Civil Rights Division that had been bled dry of civil-rights veterans by the politicized leadership of the last administration. Only the most committed staffers remained and weathered an atmosphere of casual racism and political retribution. That has all changed under Holder's leadership -- the restoration of the Civil Rights Division is arguably one of the administration's greatest -- and least diluted -- accomplishments. Thomas Perez, the new head of the Civil Rights Division, has been a forceful advocate for gay-rights legislation.
I respect Aravosis' frustration with the administration's previous defenses of DOMA, but this is the same Eric Holder who thoroughly eviscerated the statute in his letter to John Boehner indicating that the administration would refuse to defend it any further. Holder's contempt for DOMA and what it does could not have been more obvious absent a jarring breach of professionalism. To label him the White House's "biggest defender of homophobia" is to obliterate the meaning of the word. The principle he was defending here has nothing to do with the merits of the law but the integrity of the legal system.
