Yesterday, former Solicitor General Paul Clement resigned as a partner from the firm King & Spalding after they reneged on defending the constitutionality of the ban on federal recognition of same-sex marriage in court. Clement offered this rebuke to the firm. Brian Beutler reports that pressure came from one of the firm's corporate clients, Coca Cola.
Clement framed his decision as a defense of the legal principle that everyone deserves legal representation:
My resignation is of course, prompted by the firm's decision to withdraw as counsel for the Bipartisan Legal Advisory Group of the United States House of Representatives in defense of Section III of the Defense of Marriage Act. To be clear, I take this step not becasue of strongly held views about this statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General.
Instead, 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 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. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.
Ben Wittes, who assembled a letter signed by conservative legal figures denouncing the McCarthyist attack on Justice Department attorneys who represented Gitmo detainees, says the situations are similar:
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?
I think you can support the principle here without drawing a direct comparison between the two circumstances. A more appropriate comparison would be between a law firm that dropped its defense of someone accused of committing an anti-gay hate crime out of public pressure. There, a core principle of the legal system, that every accused person has the right to a zealous defense, really would be threatened by public pressure in a manner that undermines the rule of law more broadly.
What we're talking about here is not defending an unpopular person. We're talking about defending a law that, in all likelihood, affects the rights of people currently working at King and Spalding. Defending a Gitmo detainee ensures the integrity of the legal system without broader second order effects on the rights of others. Successfully defending DOMA, on the other hand, affects millions of people whose relationships are relegated to second-class status in the eyes of the state. Whereas that political position may no longer be supported by a majority of Americans, it's a view still held by nearly half the country. Comparing that kind of relative "unpopularity" to a group of people largely assumed to be among the worst scum on the planet papers over some rather large differences.
So I think Wittes and Clement are right on the broader point, that King and Spaulding should not have dropped the case, but I don't think the Gitmo comparison holds. Richard Socarides, who has expressed contempt for this principle both with DOMA and detainees at Gitmo, is profoundly wrong.
Conservatives who delighted in smearing DoJ lawyers as terrorists sympathizers, however, have rediscovered their lost affinity for the legal principle that "unpopular" clients are entitled to representation. Jennifer Rubin, who gleefully participated in the witch hunt targeting attorneys at the Justice Department, now praises Wittes for his consistency and whines that "the left decides who gets lawyers." Having attacked the very legal principle that Wittes and Clement are defending, Rubin now sees its value, but only when it applies to her tribe. This, in and of itself, mirrors the contempt for the principle of equal protection that is at the heart of DOMA's very existence.
