Matt Cooper apparently thinks Clarence represented murderers because he LIKED murderers. That’s not how it works, Matt.
Matthew Cooper, like so many before him who should know otherwise, confounds the role of an attorney with the views of the individual serving as an attorney. This is a disturbing chunk of ignorance for a prominent journalist to pass on to the public, and as I have before, I am honor bound to point it out, and also to say: Understand what you’re writing about, journalists! That’s one of your ethical duties.
In a National Journal piece about Ted Olson, who argued against Proposition 8 and for same-sex marriage before the U.S. Supreme Court, Cooper writes,
“While most folks were surprised by his support of gay marriage, I wasn’t. Yes, he was a conservative. But he had also defended the press as the longtime lawyer for the Los Angeles Times and in other First Amendment cases. He’d agreed to represent Tim Phelps, a Newsday reporter, in the Anita Hill case even if Phelps’s work was damaging to the conservative Clarence Thomas. He was conservative, but not reflexively so.”
Why is this old, basic and simple principle so difficult to grasp: a lawyer does not adopt his or her client’s views by virtue of representing them or advocating for them in court or the public square! The lawyer’s views are presumed to be irrelevant to the position he or she takes for a client. As the ABA’s Model Rules of Professional Conduct state (and legal ethics has held for centuries),
“A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”
Got that, Matt? Everybody? Finally? Ted Olson is a lawyer. He is supposed to zealously represent anyone and everyone who has a valid case to make, and Olson’s own opinion on the matter at hand not only shouldn’t determine whether he takes the case, it shouldn’t affect how well he handles it. Advocacy of other people’s issues is his job, his profession. Ted Olson is a brilliant advocate, which means he could argue either side of the gay marriage case or any other equally well and with equal effectiveness and zeal. While some lawyers prefer to take cases of litigants they are personally in agreement with, that is the exception, not the rule. Ted Olson taking the Prop 8 case doesn’t mean he’s in favor of gay marriage, and if he was taking the other side, it wouldn’t mean he approves of gay marriage. Whether a lawyer is conservative or liberal personally has no more effect on what cases he or she should take than whether he is black or white, a Yankee or a Red Sox fan, or where he was born. Pay attention, Matt! I am really sick of journalists misrepresenting the profession of law in this way, which lead to idiots in the media or in the political arena linking the character of lawyers to those of their clients. A lawyer who defends Mother Theresa is no more or less presumptively virtuous than one who defends Hannibal Lector, and the ethical duties of both lawyers are identical. Now read that back to me, Matt, and write it on the blackboard a hundred times so you finally learn it.
Come to think of it, journalists are also supposed to report fairly, objectively and effectively about people and topics they have strong personal feelings about, but increasingly, they don’t. Maybe this is why Matt is confused about professional ethics. Most lawyers follow them.
Most journalists don’t.
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Pointer: James Taranto
Source: National Journal
Ethics Alarms 
I’ve never understood this assumption that lawyers should only defend people who are either not guilty , guilt isn’t determined until someone is tried , or not defend people who have committed horrendous crimes. In my opinion the person who is obviously guilty or has committed the most horrendous of crimes are the people who need and should be represented the most to insure that justice prevails and not just revenge.
It isn’t just law. Science journalism is just as bad… worse, even, in a way. I could start to list the problems… but I honestly wouldn’t know where to begin. There are so many of them…
Can’t determine if Cooper is lazy, or just lazy.. “While most folks were surprised by his support of gay marriage, I wasn’t. Yes, he was a conservative.”
Some vague reference to ‘most folks’ seems like a writer’s crutch to support his own argument. And it’s an unethical method of suggesting that the idea of gay marriage has become so mainstream even conservatives openly support it.
Of course the best example of a lawyer defending a client whose political views apparently conflict with his/her own is the ‘National Socialist Party of America v. Village of Skokie.’
The ACLU interceded for the Nazi Party of America and won in Appeals court, for their right to march in Skokie, IL, as a measure of free speech. The ACLU lawyer was Joseph Burton, a Jew, whose parents were actual Holocaust survivors. They said they supported their son’s decision to defend the Neo Nazis, since they felt that the right to free speech was an fundamental right that should not be denied, no matter how offensive.
In the end NSPA decided to march in Chicago, when they lifted their ban on marches.
I agree with your frustration towards the “most folks” bit.
It’s related to the “everyone knows” line of argument.
The one where the person doesn’t have any data or logical principle backing an assertion, just “everybody knows”.
Although there is nothing wrong with “judicial notice” when it is pretty uncontroverted that “everyone” DOES know. There are some things that everyone, more or less, does.
If it supported by fact, certainly. But then its not an “everyone knows” argument. It’s got data backing it.
I’m referring to lines such as:
“Everyone knows environmentalists are a bunch of hippies…”
“Everyone knows George bush hates blacks…”
“Everyone knows Libertarians only care about pot legalization…”
“Everyone knows Republicans like war…”
“Everyone knows….”
Also translated as “I really hate the following (noun) but have no data to substantiate the premise I am about to establish, from which I will attempt to make a logical argument.”
Would Cooper have written, ” “While most folks were surprised by the ACLU’s lawyers support of white power, I wasn’t” ?
Sounds about right.. And the media was somewhat shocked at the ACLU at the time…However their mission is to defend Constitutional rights, esp the Bill of Rights.
Great example. Whether it’s the ACLU or not, the most important credo of the American Justice System is the EVERYONE deserves a defense, and the lawyer who chooses (or is assigned) to defend someone or something he doesn’t personally believe in is only supporting the most basic of our justice precepts. (Lawyers, who have a terrible reputation among the public — and sometimes for good reason — should actually be applauded for adhering to this precept. As the old saw goes, everyone hates lawyers until they need one…)
Journalists don’t get this because: (1) they are lazy; (2) they are ignorant; (3) they don’t know how or care to keep their personal (or networks’) biases out of their reporting; (4) they don’t care that their “news” is really “editorials;” and (5) they therefore can’t be trusted to report news in any way that actually informs the public. What are they teaching in “journalism schools” these days???? No more fact-checking, no vetting, just toe the line with your superiors’ opinions and “takes” on issues?
This is 1930s yellow journalism on the air, that’s all…
When I first read Cooper’s comments, this perspective had escaped me – thanks for pointing it out to us non-lawyers.
What struck me was this sentence:
“Yes, he was a conservative. But he had also defended the press as the longtime lawyer for the Los Angeles Times and in other First Amendment cases. ”
So the bias here is that conservatives don’t support and defend the First Amendment???
Yes, that is part of the narrative that is consistently advanced.
But in this case, Ted Olsen really does support gay marriage. His support is independent of the case before the Supreme Court. Someone could, therefore, be surprised by that support.
To go back to the comparison with Clarence Darrow, I don’t think anyone would disagree that Darrow was in favour of the teaching of evolution, and that this support was independent of Scopes.
Matthew Cooper’s assumption that conservatives do not support the First Amendment is, however, odd.
Where do you get the idea the Olson personally opposes gay marriage? That’s not in Cooper’s piece. Cooper says that “he” is opposing Proposition 8, but Olson is doing so only on behalf of his client—he’s not a party. When Olson speaks, he is speaking for his client—ethically, he is not permitted to say that he personally opposes gay marriage while he’s taking the opposite position in court.
Your statement would be true, except that Olson doesn’t make the case that way. The only evidence he puts forth for the “surprising” opinion Olson supposedly holds about gay marriage are his activities in connection with this case.
I said that Olsen personally supports gay marriage. Olsen himself has said that he does, and has expressed disappointment that people will not take his support “on face value” According to people who know him, he expressed support of gay marriage prior to taking on the case. See http://www.nytimes.com/2009/08/19/us/19olson.html?pagewanted=all&_r=0, particularly the comment by David Frum.
I suppose Olsen could be merely claiming to personally support gay marriage and has asked all of his friends to say that he supported gay marriage in the hopes that it would sway judges in favour of his client. I do not think this theory is likely.
See my response to Ampersand. Same here.
Olson has said publicly many times that he personally favors legal same-sex marriage. It’s an integral part of the story he tells about why he took on this case; his ex-wife’s sister told Rob Reiner’s wife that Olson was strongly in favor of gay marriage, and this intrigued the Reiners enough to set up a meeting to talk about launching an anti-Prop 8 lawsuit. Olson discounted his usual fee for this case.
Prior to that, the prop 8 proponents had tried to hire him, and he turned them down. See the article “A Conservative’s Road to Same-Sex Marriage Advocacy” in the New York Times from last August, and also “The Truth About Ted Olson’s Gay Marriage Views” by David Frum earlier today.
Of course, that doesn’t make what you say wrong – the writer cited a few cases, and I doubt the writer has any idea of if Olson personally agrees with the views he argued for in those cases. But anyone who has been following the prop 8 case closely would be aware that Olson claims to be on the case out of personal conviction.
My comments are directed at the article by Cooper, not Olson. If Cooper had supported his contention that Olson supports same sex marriage by quoting him separate from the case, then I’d have no issue. He didn’t. he thinks the fact that Olson took this client sufficiently proves his personal views. It doesn’t Copper’s misleading his readers.
I would assume Olson was pro-same sex marriage because he’s a smart guy, and because the Equal Protection Clause is clear as a bell. I would also assume that if he was defending Prop 8 tooth and nail.
I don’t agree. Robert George is a smart guy, for instance. Being smart is not a guarantee against having mistaken views.
As for Cooper, as I said, I agree with you that a lawyer’s personal views shouldn’t be inferred from the cases he takes. There are some exceptions to that, I think – some lawyers are clearly lawyer/activists, who are choosnig their cases out of conviction – but as a general rule, I think you’re right.
I said I would assume that a smart guy, especially a smart lawyer, would reach the conclusion that whether of not same-sex marriage is societally wise, the Constitution demands it. I didn’t say that such an assumption would be right in all cases. I assume that smart people will like baseball, but I know many who don’t. There are not many smart, legal routes to the conclusion that we should provide legitimacy and privileges to the committed union of one kind of citizen and not another.
Olson’s answer to Scalia’s question yesterday should have been that opposite-sex only marriage became unconstitional under the Equal Protection Cllause in two stages—when the government began handing out benefits for married coouples, and once SCOTUS recognized, in Brown, that “separate is inherently unequal.” That’s the ballgame.
Slightly off topic, but does the same argument hold for people like John Yoo? He was excoriated in the news for his interrogation memo, but wasn’t he just putting forth the best argument for a position his boss asked him to argue?
Absolutely. As it happens, Yoo believes what he argued in his “torture memos”, but there is no ethical reason why he would have to, as long as it was a valid argument from an advocacy perspective.
Mr. Cooper makes the assumption that “conservative” (note lowercase here) is the equivalent of being of the religious right. Although this can be the case with some people, it is not universal. Many who call themselves conservative are of the belief that the reach of government should be short, and definitely not long enough to enter people’s personal lives. Mr. Cooper’s implication that Mr. Olson’s advocacy for legalizing gay marriage is in conflict with his conservative values just shows Mr. Cooper’s lack of understanding of such things.
Mr. Olson may look favorably upon gay marriage because he doesn’t think the government should make the decision, one way or the other, that government should leave people’s personal choices to those people. He may also think that the government has no business giving Income Tax breaks to those who are officially married while denying it to those committed relationships that don’t happen to have “benefit of clergy”.
What bugs me even more than a journalist messing this up is the White House messing this up on the DOMA case. I presume they did not defend the law because it’s a law they don’t like, so they don’t want to be seen as defending it even when it’s their job.
Every White House, including Bush and Reagan, occasionally chooses to drop rather than defend a law. That’s always been their prerogative, and they definitely have the legal right to do it. (Although admittedly, it’s only used once or twice per administration.)
If the administration HAD defended DOMA, DOMA’s supporters would be complaining that Obama had deliberately messed up the defense or played softball. This way, DOMA is being defended by people who are motivated to defend it, and the advocate they hired, Paul Clemant, is unquestionably one of the top Supreme Court lawyers in the country. So I don’t really understand why pro-DOMA folks are complaining.
(Although I realize that you yourself may not be pro-DOMA. It was a general comment, not necessary applicable to you in particular.)
I’m curious: what other example is there of a Justice Department and a President refusing to defend duly passed and signed legislation under a court challenge? I can’t find one, but you’re a better researcher than am. I’ve seen switches in enforcement policy, but that is very different. To me, and I’m anti-DOMA, its a breach of the Oath of Office and the duty of the Government. Laws are repealed or declared unconstitutional, not abandoned by edict. This one of my major complaints about this administration.
Scalia noted today two examples where he had seen this before, when the question before the court concerns presidential powers which the president feels is unconstitutional then they may choose not to defend it. The other case is when a law has literally no rational argument to support it. But neither case applies here.
To your specific point of people accusing them of sandbagging it had they defended it, all I can say is to allow political considerations to influence the decision to uphold their Oath of Office speaks far more to me about their lack of integrity.
This post on Outside the Beltway lists 11 examples, and that’s by no means a comprehensive list.
Contrary to what Brian claims, the examples are not limited to “when a law has literally no rational argument to support it,” since in several of the cases the Supreme Court eventually ruled that the law was constitutional. Nor do most of the cases directly concern presidential powers.
Ironically, in one case – ACLU v. Mineta, during the second Bush administration – the Solicitor General who chose not to defend the law was Paul Clements, who is, of course, the lawyer that Congress has hired to defend DOMA.
Over on The Volokh Conspiracy, Ilya Somin – who no one could accuse of being either ignorant of the law, or an Obama fan – wrote a post called “Do Presidents Have a Duty to Defend the Constitutionality of Laws they Believe to be Unconstitutional?” which might also be worth your consideration.
The oath reads “I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” (I dislike the “that”; the sentence would read as well without it.)
Faithfully executing the office does not require the President to ignore whether or not a law is unconstitutional. As Somin argues, if the President believes a law to be unconstitutional, he arguably has a duty to decline to defend it. (Or even to decline to execute it, although Obama has not gone that far).
Nor has the law been abandoned. Instead, it’s been defended by extremely capable council. Do you honestly believe the administration would do a better job defending this hopeless law than Clements?
And if the administration was defending DOMA, wouldn’t many of the same people criticizing Obama for letting Congress defend DOMA, instead be criticizing Obama for “purposely” blowing the defense? This really seems to me like a “damned no matter what he does” situation.
Useful list. Somin notwithstanding, I think it is a breach of Presidential duty, just as I think the popular concept, among Democrats at least, that Congress can ignore the Constitution in formulating laws because the Supreme Court is around to declare them unconstitutional is a breach of Congressional duty.
The Constitution directs the President under Article II, Section 3 , to “take care that the laws are carried out faithfully. It says “ the president shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.” By my reading that means that by swearing to uphold the Constitution, a President also swears to enforce and defend laws duly passed and signed into law, whether he may think they are unconstitutional or not. Why is it fine to oppose these laws and not any and every law? DOMA was signed into law, and while it is a law, the U.S. government is bound to enforce it as the law of the land. I don’t see how you can have rule of law without such a principle.
I agree the DOMA is a bad law, but the holder of Obama’s position could have vetoed it, and didn’t. It’s the law, until its repealed or declared unconstitutional. For the executive to cancel out a law by non-enforcement is violation of separation of powers.
But the executive branch under Obama has been enforcing DOMA (which is why Edith Windsor lost all that money). You’re conflating “enforcing” aka “executing” with “defending in court,” but they’re not the same thing.
The Constitution calls for the executive to “take care that the laws be faithfully executed.” It doesn’t say a word about “defending in court.” You’re free to interpret it that way if you want, but you can’t reasonably expect everyone else to treat your interpretation as if it carried the same weight as something that’s actually written in the Constitution.
As for supporting clearly unconstitutional laws, I think it would take a true partisan to believe that only one party does this. (Remember all the anti-flag-burning laws?)
The fact that the government hasn’t actively defided the law doesn’t mean it has met the burden of enforcing it. Publicly disclaiming a law undermines enforcement—there is not the dichotomy that you claim. Again, that is not the Executive’s role, once the bill has been signed.
Nor is it partisan to note reality. Obviously both parties have been behind unconstitutional measures, though in the (idiotic) case of the flag-burning obsession there were good faith arguments that what was being prohibited was conduct, not speech. But it was not until the recent vintage of Democrats that I ever heard media, legal analysts and Congress members express the cynical and ahistorical belief that there was no obligation on the part of Congress to make an effort to keep legislation within the bounds of the Constitution—that this was the job of the courts alone. It is an appalling, ignorant and sinister distortion, really contemptible, and if there is a Republican or a Rastafarian or a Martian who dares to express such undemocratic bile, I detest them as well.
I have never heard this position from a non-Democrat (or certified Democratic mouthpiece, like Dahlia Lithwick.) Have you? If there is revolting conduct and philosophy authored by one party, and that party only, how is it “partisan” to note and deplore it? It is partisan, on the contrary, not to. Christine O’Donnell was mocked by Democrats by asserting (she is an idiot, but a stopped clock…) that Congress should consider constitutionality. I heard an NPR host, discussing gun control last week, express astonishment at a conservative’s complaint that some of the new laws might be Second Amendment violations, saying, “Well, but that’s not Congress’s job to worry about that!” Sen Feinstein, during debate over her assault weapons ban, made the same claim.
That is not how elected official, in any party, in any nation, under any Constitution, honor, enforce and defend it, and it is not partisan to say so, or to notice where the distortion appears to be emanating from
‘Contrary to what Brian claims, the examples are not limited to, ‘when a law has literally no rational argument to support it”
The first reason I gave is when the law in questions regards presidential powers, which I believe most of the cases on the list you provided include.