Remember this?
It was not that long ago that Liz Cheney, Bill Kristol, Cully Stimson and others were attacking DOJ attorneys who had represented Gitmo detainees, and Ted Olson, Alberto Gonzales and other leading conservative attorneys decried them for doing so.
Yes, this case is a little different. It's civil, not criminal, and paid, not pro bono. And the terms of the engagement letter did, IMHO, go a bit further than necessary in restricting the free speech of other Firm employees compared to what I think the duty of loyalty requires, and if the client was inflexible about that then King & Spalding may have been right to terminate the relationship given the internal outcry.
But it still sucks.
It sucks because large corporate clients shouldn't be able to dictate what ideological causes its lawyers take on when they have nothing to do with that client's representation. Because even though this time it was for a good cause, next time it might be "we don't want to work with a firm that represents folks on death row."
Dahlia Lithwick:
[N]o firm has to take a civil case. As a descriptive matter that's true. DOMA has no "right" to be defended. But as a normative matter it sidesteps the real question: What is the end game here? When groups pressure a firm into dropping representation for an unpopular client, is the ultimate goal to have only bad lawyers defend an unpopular law, or no lawyers at all? And what kind of legal victory would either of those ends represent?
Neither of those two goals serves the ends of the justice system. Recall that one of the reasons the Proposition 8 trial in California was so maddening to watch last year was that the legal defense advanced of the gay marriage ban was half-hearted and circular. As Linda Hirshman has pointed out, the legal defense of DOMA will be both difficult and dispiriting. What possible ends are served by having that done badly or not at all? Instead of attempting to hobble the litigation process, proponents of the DOMA litigation should celebrate an opportunity to finally air the question of equal rights for gay marriage publicly and effectively.
You can call it "educating" a law firm when you threaten it with charges of bigotry, but don't claim that as a victory against bigotry. It's not. Zealous advocacy means teaching America that intolerance is wrong, rather than evincing intolerance for everyone on the other side. If Seth Waxman, who will be opposing DOMA in the courts, can find nothing to complain of in Clement's representation, there should be no complaints. DOMA should die in a court of law because it is small-minded and illegal, not for lack of a defender.
Glenn Greenwald agrees. So does
Benjamin Wittes:
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?
Yes, as Clarknt67 has suggest, it's nice to shift the Overton Window so far on DOMA to make its support
this untouchable in our culture, and there's no question you can think less of Paul Clement personally for taking on this case. Nor would anyone have raised hackles if K&S had declined to take on this case in the first place, based on internal and perceived external backlash.
But once that representation is agreed-to, it should be respected. Criticized, sure, but not pressured into non-existence, because this tactic should not be legitimized for use by our political opponents. Dahlia, again:
In the end, politicizing and demonizing the attorneys who represent unpopular clients or causes is really no different than politicizing and demonizing the judges who vote to uphold the rights of unpopular clients. And, yes, I am looking at you, bullies who ran off former members of the Iowa Supreme Court for their votes to uphold gay marriage. Both actions misapprehend the difference between political power and justice. And both ignore the fact that—given a chance to do so without pressure, politics, or threats—the courts will more often than not get it right on their own.