John Adams defended the guys in red, and Paul Clement understands why.
Law firm King & Spalding announced Monday that it would no longer represent congressional Republicans regarding the constitutionality of the Defense of Marriage Act (DOMA), the controversial 1996 legislation that defines marriage as being only between a man and a woman.. In response, the firm’s chief appellate lawyer, Paul Clement, who was handling the case, resigned from the firm.
In February, the Obama administration announced that its Justice Department would refuse to defend DOMA in a number of lawsuits, an unusual, controversial and troubling decision. It doesn’t take a lot of imagination to conceive of other federal laws another administration might decide to render dead letters by non-defense despite being duly passed by the people’s representatives. A government has an obligation to duly execute its laws or repeal them. The policy of the Administration regarding DOMA raised issues of governmental integrity quite separate from the provisions of the law itself.
Into the breach created by the Justice Department’s refusal to carry out its duty to defend the laws stepped the Republican House of Representatives, retaining King & Spalding and Clement, widely regarded as one of the best appellate attorney in the nation, to argue for the constitutionality of DOMA in several pending cases. But King & Spaulding, which has a reputation of supporting diversity and the gay community, immediately came under fire by same sex marriage advocates, including the Human Rights Campaign, a national gay-rights organization that announced plans to call for clients, recruits and the public to pressure the law firm to drop the cases.
That is an unethical, un-American strategy. Both sides in legitimate litigation deserve the best representation they can find, and representing unpopular causes and clients is a core duty of the legal profession. The Human Rights Campaign is not willing to test its position on the merits of its arguments, preferring to impede its adversaries’ right to present its legal case. Did King & Spalding capitulate to these unethical tactics? It is impossible to say for certain. HRC and its allies had threatened to organize boycotts of King & Spalding clients, who were signalling their unhappiness with the firm’s choice of clients. Many have speculated that the firm feared that the case would hamper its recruitment of young lawyers, though I would question whether lawyers who do not believe in the core principles of legal representation are worth recruiting. When law firm partners in various law firms came under fire ( from a Deputy Secretary of Defense, among others) for representing terrorist detainees at Gitmo, the profession strongly and indignantly backed the lawyers, reminding the public and the media that an attorney does not signal endorsement or approval of the views or acts of clients by representing them, but rather supports the rule of law by allowing the adversary system to function. Bizarre, is it not? Representing alleged terrorists is honorable, and defending duly passed legislation of the United States is not. We live in strange times indeed.
There were other reasons for the firm to withdraw: the House had insisted on a retainer agreement that put extraordinary limitations on the firm’s activities, and it could have reasonably concluded that agreeing to such terms was a mistake. Clement, however, took a courageous path, leaving the firm and vowing to represent an unpopular cause to its conclusion, as he had committed to do. In his resignation letter, Clement stated that he was leaving not because of any special devotion to the merits of the case, but because
“…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.”
Professing regret at having to leave a firm and colleagues he admires, Clement closes by saying that his loyalty to his client and respect for the profession must come first.
Writing at the Volokh Conspiracy, Jonathan Adler summed up the correctness of Clement’s act:
“When some conservatives attacked private law firms and threatened retaliation for defending accused terrorists, the bar responded with outrage — and rightfully so….At the time, we heard all the same arguments we are hearing now from Human Rights Campaign 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…”
Indeed. Clement has upheld the ethical principles—loyalty, zeal, independence, integrity, resistance to outside interest and influences—that form the bedrock of the legal profession.
Ethics Alarms 
I’ve been following that story over the last two days, Jack. As I mentioned on my Facebook wall just an hour ago, one of the best indicators of character in a public figure is when he can walk away from a lucrative job over a point of principle, honor and decency. Paul Clements proved his thus.
So, instead of working for the man’s client, Clement has become the man. I wouldn’t say he gave up a lucrative job, he’s still got his client, right? And now he’ll probably end up with a bigger cut, right?
Admirable and courageous as it is, I don’t think it was entirely without financial benefit.
As a former U.S. Solicitor General of vast experience, it’s not surprising that he was hired quickly by another law firm. But it would have been a lot easier for him to have just “gone with the flow”. It remains a matter of principle. This should not be disparaged.
No, it doesn’t work the way. The retainer was signed, and he moved to a smaller firm; his billable hours haven’t changed. And he is much in demand, AND the House is getting a discount. He probably loses money by keeping the case.
How did you become so cynical at such a tender age?
Everyone always told me that lawyers were evil, so I’m always looking for the angle.
I can sympathize, Tim. Bitter experience has taught me that lawyers (ironically) are to be presumed guilty until proven innocent. But I’ve also learned that, despite a system that often punishes integrity, there are an amazing number of good ones out there. Reactionaries, no doubt! And Paul Clements is now their poster boy. But… when you find that ethical attorney, put him on waivers. Immediately! You don’t ever know when you may need him or when another such will come your way again.
Some legal experts say that, by refusing to defend the law, the Obama administration actually handed over its defense to the House of Representatives so that they can find a law firm that actually will defend it vigorously. I guess they are having a little difficulty doing that, but I’m sure they will find someone. It is unusual, but not unprecedented. The Bush adminsitration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend
(continued) an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly for those defending the law, both policies were ultimately upheld by the Supreme Court, so they should hope that the firm and Clements have the same success. I don’t.
(Sorry about the break, I hit the “post” key by accident)
I hardly see those two cases you mentioned as relevant. DOMA is a federal law that DoJ, in violation of its mandate, has refused to defend on the basis of constitutionality, despite Obama’s (public) contention that it is rightful. Can defending “affirmative” practices- both in defiance OF the First Amendment- fall in the same category? There is nothing in Defense of Marriage that violates the written word of the Constitution.
Thanks for that background. I find agency policies much more defensible for Administrations not to defend than laws. The government is bound to defend laws; it can do what it wants with policies. Ethically, any justice Department lawyer who handled the DOMA case would be obligated to defend it vigorously—if your legal experts are right, then the Justice Department is staffed with incompetent, unethical lawyers. Do people really think that you can assemble a team of super-lawyers to defend a murdering slime like OJ, and can’t find a superb legal team to go to the mat over Doma?
Apparently, Obama and his Justice Department have decided that DOMA does violate the written word of the Constitution, hence their determination that it is unconstitutional. His oath of office states that he will defend the Constitution, and I believe that is what they think they are doing. To defend this law would violate his oath. If anything, they are doing the ethical thing by allowing those in favor of the law to find their own counsel to defend it.
Janet: They’ve forwarded nothing to back up their claim. AND they have a glaring political motivation for not doing so. Expediency trumps ethics.
No, Jan, he also has to follow the Constitution while protecting it. A President signed DOMA into law, and the only way to repeal it is to sign it out of law. The Supreme Court is the branch that decides Constitutionality, after a fair argument before the justices including the Justice Department representing the law of the land. Let’s say Newt Gingrich beats Obama in 2012 and decides not to defend the health care law when’s it’s challenged before SCOTUS, because Newt thinks the law is unconstitutional. Like that scenario? (I mean, besides the too-horrible Newt as President part…)
I don’t know, Jack. I’m starting to take a second look at Gingrich’s candidacy. I hope that doesn’t upset you too much! LOL
Do not critics realize if DOMA is not defended in court, the Supreme Court will not get a chance to weigh the merits?
This was all part of the strategy. There was a process in place for the House to take up the defense of the law, and the President and the Justice Department took advantage of it, knowing the House would do so–and it did. There was never any doubt that the law would go to the Supreme Court.
The Justice Department has the obligation to enforce the law, which it does, not to defend it. And I would certainly NOT want President Newt’s Justice Department defending the Affordable Care Act.
You’re forgetting that this is supposed to be one government, not two. A presidential administration is supposed to respect the continuity of the laws and the office. This “strategy” is the mark of dysfunctional government and hyper-partisanship.
True, although whether the Supremes grant cert is a different issue.
Jack: I’m glad to see you’ve come around on this one.
https://ethicsalarms.com/2011/02/24/obamas-doma-decision-ethical/
Also, the Presidential Oath is to “faithfully execute the Office of President” first and to “preserve, protect and defend the Constitution” second.
–Dwayne
The two posts are not inconsistent, nor are my comments. I still think Obama’s decision is ethical…it may even be ethically motivated. I just think it’s mistaken, harmful, misguided and one more example of poor leadership. An honest mistake, undoubtedly advised by the incompetent AG.
An incompetant AG to be sure. But also one that Obama chose in spite of his previous record of infamy while serving under Janet Reno. Therefore, it can only be assumed that loyalty to Obama’s philosophy was the key factor in his appointment. When a leader chooses loyalty over competancy, it historically sets the stage for disaster (in the private sector) or budding tyranny in the public.
As Ed Whelan pointed out , Obama caved into pressure from the gay lobby, who reacted negatively to his brief in Smelt v. United States , No. 09-286 (C.D. Cal. June 11, 2009)
The “controversial” brief is here .
Partisanship is an inherent factor in Congress under all circumstances. It’s supposed to be a more subtle factor in the executive branch and not a factor at all with SCOTUS. But these are not ordinary times. What we have has gone beyond the mere rivalry of competing political parties. Those parties have come to represent two competing IDEOLOGIES which basically have no common ground.
This came about as the inevitable outgrowth of the leftist youth movement of the 60’s-70’s. From the vagarities of political infighting, there emerged in 2008 a federal government dominated by the Left in all branches but, perhaps, the Supreme Court. Thinking the battle now won, the Left immediately sought to impose a high cost, big government neo-socialist regime. This, in turn, sparked a rightist counterrevolutionary movement; epitomized by the Tea Party and forwarded by a resurgent GOP.
Now the Right was firmly recaptured the House, made unprecedented gains in the states on all levels and is within striking distance of the Senate and the White House. Increasingly, those states are envoking the long-marginalized Tenth Amendment against federal programs they deem unconstitutional intrusions of power, thus striking at the heart of the Left’s attempt to consolidate their newly won authority to a permanent basis. All this in only two year’s time.
Under such circumstances, anything is possible and nothing is off the table. The Left, with its popularity fading as the downside of its objectives became apparent, has turned to its traditional allies in the press, unions, etc. in a desperate bid for power. The political manueverings in Washington are merely the boiling at the top of the pot. The heat is coming at its bottom. The riots in Columbus and Madison were only the opening shots of a virtual civil war manifesting itself on the streets.
More will follow as the 2012 election approaches. Both sides sense that a final showdown is in the making. It WILL get ugly.