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I'll preface this by expressing in the strongest terms possible, the title is a heavy dose of snark, but is the necessary corollary of some of what is being said here, in the media and by the first African-American U.S. Attorney General in the history of the United States.

On Monday, the law firm of King and Spalding announced it was withdrawing as the firm of record defending the constitutionality of the D[enial] of Marriage Act (DOMA) in a series of cases on behalf of the U.S. House of Representatives. It said the firm took on the case without proper vetting, but as we have now learned, some of the firms clients, most notably Coca-Cola, did not approve of the firm defending a very bigoted law in light of their companies' and the firm's policies regarding diversity and non-discrimination. Nor did many employees of K&S approve of the terms in the contract which, among other things, prohibited any K&S employee, regardless of their prior activism, regardless of their location, regardless of their lack of connection to the case within the firm, to openly oppose and advocate against the constitutionality of DOMA.

AdamB, who I have a great deal of respect for, posted his take earlier today. I can't say I agree it sets up a false equivalence or something approaching it that defending a person who may be an unpopular criminal defendant accused of a heinous crime or advocating for the civil rights of a politically unpopular minority are on par with defending laws that target unpopular minorities with disfavored legal status. I hope we can see this as more of a gradient, a continuum, than some sort of binary state.

One predominating theme in much of the the coverage has been, as I state above, that laws that are bigoted and discriminatory towards relatively politically powerless minorities should be treated like persons standing trial for alleged crimes and that they should be entitled to the best defense possible by lawyers who should not be criticized for taking the case. I personally believe, very strongly, every criminal defendant should be entitled to a vigorous defense and that their lawyers should be relatively unscathed by their willingness to defend even the most loathsome and vile of defendants.

But that belief stems from two things. First is this is a person you are dealing with, not a law. A person is a living thing with a finite life that can be severely deprived from them by a prosecution. A law on the other hand can be corrected over time and is not similarly deprived by it being found unconstitutional. A law can't be permanently executed. It can always be brought back to life by later legislation or amendment of the laws or Constitution. Second, in matters of criminal prosecution, you have a large, powerful entity in the form of the government acting in the name of all of the people represented by that governmental entity, pursuing a matter against one of a small few individuals who are often powerless, voiceless and on the margins of society. It is an army of muscled bodybuilders versus the proverbial 98lb weakling. Our sense of fairness in such battles dictate that the 98lb weakling should not be unduly disadvantaged by being a 98lb weakling. The notion in this case that the People of the United States in the person of the United States House of Representatives is a 98lb weakling and that the LGBT community is an almighty and all powerful force turns rationality upon its head.

The case is being brought to bear on the argument of whether lawyers should be seen in the light of their clients by the discourse over the K&S situation. While I think it is obvious that lawyers should not generally or necessarily be judged based on their clients, the light being shown on this argument is casting a shadow. In the penumbra of the shadows being cast by that light is the notion that the LGBT community are being thugs for pressuring K&S clients to express their distaste for the firm's choice to defend DOMA. We are seeing a lionizing of Clement and a denigration of HRC, the Human Rights Campaign (and trust me when I say I'm generally not fond of defending HRC as I don't have a high opinion of their effectiveness on most thing, but this has been an exception), a LGBT rights organization that annually rates major employers on their openness and inclusiveness of the LGBT community.

From Josh Gerstein's Under the Radar blog at Politico:

Attorney General Eric Holder is coming to the defense of former Solicitor General Paul Clement, after gay rights advocates criticized his decision to take on the defense of the Defense of Marriage Act in court. [...]

"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 detainees 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.

Holder should be one to talk. The reason that he's no longer defending DOMA is the pressure the LGBT had to apply to the Obama Administration and the DOJ after causing a shit storm in 2009 over their legal brief that relied on references to pedophilia ephebophilia and incest to justify the constitutionality of DOMA, displaying the same level of tact as a lawyer defending the constitutionality of miscegenation laws by citing a case where a court ruled a person cannot marry a monkey. Holder is simply trying to cast himself in a better light given his rocky, borderline homophobic relationship with the LGBT community.

But Holder's comments were infinitely more mild than those doled out by the Washington Post's editorial board who was less subtle:

HRC is right to fight vigorously to overturn DOMA, which deprives gays and lesbians of many of the rights enjoyed by their heterosexual counterparts. But it sullies itself and its cause by resorting to bullying tactics.

The group’s attack called to mind last year’s assault on Justice Department lawyers who had in private practice represented detainees at the U.S. naval base in Guantanamo Bay, Cuba

Yes, a 98lb weakling who's been beaten and bruised by the strong jock over and over for years is the real evil culprit if he deigns to poke the jock in the eye. The weakling is the one that must be condemned ad nauseum, not the recidivist brawny assailant.

Let us be clear, the messaging that is going on casts Paul Clement as a hero for seeking to deprive gays and lesbians of a fundamental human right while the activists fighting for that fundamental human right are the thugs just like Martin Luther King and his leadership of the boycott of the Montgomery buses, using influence of protests and economic pressure to get what they wanted. Please. MLK was called a thug for peaceful but unrelenting civil disobedience and economic boycotts of their foes. Are we really suppose to pity the racist Montgomery bus system or the owners of Woolworth's?

If history is any guide, I seriously doubt Clement and his clients in the DOMA case will be cast in such heroic terms. Every heard of R.D. McIlwaine III? I sincerely doubt it, but in the warped prism of light we are seeing today, he was the greatest of American heros, valiantly defending the great people (i.e. those people not afflicted with the condition of being Negro or native American not descended from colonial white Virginian John Smith) of the Commonwealth of Virginia from the scourge of sharing their public schools with the vile descendants of Cain and Ham, fighting against those descendants from mingling their blood with the pure race in marriage, and working to stop those stained persons from participating in our democratic process of voting. As the assistant attorney general for the state of Virginia, McIlwaine argued some of the most important civil rights cases of the century before the Supreme Court, most notably Loving v Virginia. He argued them for the segregationists.

I don't bring up McIlwaine to drag him through the mud nearly a half century later. I don't bring him up to compare him to Clement. Indeed I bring him up to mostly contrast him to Clement.

Arguing cases as vigorously as one can as a lawyer may seem like it is the ideal, but when you aren't defending a criminal defendant against the omnipresent power of the state or fighting to end laws that wrongly discriminate against the politically powerless, the voiceless or the outcasts on the margins of society, what are you really fighting for? Are you really going to tell me that a non-governmental lawyer like Paul Clement is fighting for the constitutionality of this law because he has some noble sense that every law, no matter how repulsive or unconstitutional deserves a vigorous defense and not out of some sense of agreement with the oppression embodied by the law. This is not some Jewish lawyer stepping forward to defend the Nazi's right to march in Skokie, where there was a larger principle at stake, a principle the Jewish lawyer cherished to the extent he would support the right of his most vile adversaries, the right of free speech for even the most unpopular of ideas.

Clement didn't take this case because his boss Eric Holder or Barack Obama ordered him to. He's not solicitor general anymore. He's not bound to follow the policy directives of the executive office or the AG as McIlwaine was as assistant attorney general of Virginia. McIlwaine's only recourse if he didn't want to argue for segregation was to resign, which given his possible financial situation or job prospects post resignation for declining to defend what were in Virginia very popular laws, perhaps was not much of a choice. For that, McIlwaine should not be dragged through the mud too much. He was a lawyer. He was doing his job as directed by his employer, the Commonwealth of Virginia.

Clement on the other hand, had free reign of choice to take or not take the case. There is no noble larger principle at stake. He took the case for one or both of two reasons...money or he agrees with the idea embodied by the law he's defending. Neither reason casts a very favorable light. Sure there are lots of lawyers that will prostitue themselves our for any cause for the right money. OK, I get that, that's the American way. I can live with that..., but we're talking about $520/hour for a maximum of $500,000 for a former solicitor general of the United States, plus his staff. This is government work, not a get rich scheme. He's not going to make a fortune doing it unless there are under-the-table deals in the works to plunder the treasury for more than the initial contract (which I admit isn't just possible, but likely). He can make far more money in the private sector given his credentials. He didn't need this to boost his resume...he's got plenty to get the big gigs already.

That leaves his animus or perhaps red meat driving the animus of the right wing base as the only possible reason for taking on this case. He's either a bigot or feels it is to the political advantage of his political cohorts to fuel the bigotry of the Republicans' low information voter base of fascists and right wing Christianists. For that, criticism of Clement is fair game. I have no problem with DOMA having a lawyer to defend it. I have no problem with Clement doing so if that is really what he wants to do. But Clement and the firm he works for should expect that some of their other clients will not (and perhaps should not) like it. Coca-Cola has a lot of choices available for who they retain as their general counsel, and if Coca-Cola does not want to have their brand tarnished by retaining in their employ an employee or contractors that brings disrepute to their brand, they have every right to express that and eventually take action to insure they are not damaged by the association.

If you voluntarily choose to associate with someone that actively defends racism and racist ideas because that person believes in those ideas or believes it is good to incite racial disharmony, don't you think your friends would judge you in a slightly more negative light for your association with such a vile person? HRC did the right thing in getting Coca-Cola to recognize the potential damage K&S's association with the DOMA defense could do to them. This isn't about bullying so that DOMA doesn't have a defense. I want a defense. I want it to get to the Supreme Court.  This is about holding people accountable for their publicly advocated beliefs. Gays have just as much right to apply pressure as a person deciding to forgo eating at Cracker Barrel because of their company policy regarding LGBT people, or choosing not to attend Bob Jones University because of their history of racial discrimination, or choosing not to buy Georgia-Pacific products because that supports the Koch Brothers' fortune. LGBT people are not the bullies in this fight and Paul Clement is not the hero though I wouldn't go so far as to necessarily call him a villain either. He made a choice though and must suffering the consequences of disinfecting light of public scrutiny of the decision.

This expectation that Clement, and prior to their withdrawal from the case K&S, should not be criticized for taking a case defending bigotry is unreasonable.

Originally posted to craigkg on Wed Apr 27, 2011 at 01:59 PM PDT.

Also republished by Angry Gays.

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Comment Preferences

  •  Tip Jar (7+ / 0-)

    "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

    by craigkg on Wed Apr 27, 2011 at 01:59:32 PM PDT

  •  Well put (4+ / 0-)
    Recommended by:
    craigkg, psychodrew, EdSF, Zooey Glass

    I see nothing wrong with using pressure to get a law firm to do the right thing.

    I'm not going to applaud a bigot for defending a law passed by bigots.

    There are many out there who deserve our scorn and rebuke more than Clement, but we can surely save at least a little for him.

    Numbers are like people . . . Torture them enough and they'll tell you anything.

    by Actuary4Change on Wed Apr 27, 2011 at 02:11:59 PM PDT

  •  I've said everything I can already (4+ / 0-)
    Recommended by:
    psychodrew, craigkg, VClib, DWG

    And I don't mind the disagreement at all.  Here's the core of my problem:

    But Clement and the firm he works for should expect that some of their other clients will not (and perhaps should not) like it. Coke-Cola has a lot of choices available for who they retain as their general counsel, and if Coke-Cola does not want to have their brand tarnished by retaining in their employ an employee or contractors that brings disrepute to their brand, they have every right to express that and eventually take action to insure they are not damaged by the association.
    What other work -- paid or pro bono -- will become the next locus of such pressure?
    •  Again, I think the underlying rationale matters (2+ / 0-)
      Recommended by:
      psychodrew, EdSF

      If it is a criminal defendant, I do think the lawyers should be almost entirely off limits from such criticism. One of the lawyers I respect deeply for his willingness to defend unpopular criminal defendants is Ramsey Clark. He's defended David Koresh, Charles Taylor, Radovan Karadic and Slobodan Milosevic, Saddam Hussein. That's a pretty vile list. Do I think Ramsey Clark shares their views of people. absolutely not because he was defending them out of principle that everyone is entitled to a good defense in court. And a Jewish lawyer that defends the freedom of speech of Nazis is a patriot of the highest order in my opinion, but I don't think that extends to laws that oppress those minorities who already lack the political power to achieve equality for themselves in society. It isn't a bright line, but a bright line isn't always the best measure.

      "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

      by craigkg on Wed Apr 27, 2011 at 02:37:35 PM PDT

      [ Parent ]

      •  But that's so results-oriented (2+ / 0-)
        Recommended by:
        craigkg, VClib

        Because that's pretty close to "the lawyers who represent bad causes don't get protection," and in some communities the definition of a "bad cause" is going to be different than what we'd like.

        A few years ago I represented pro bono a suburban fourth grader who had been harassed by her teacher for referring to her father as a "donor dad" -- which he was, and which is what her lesbian parents always referred to him as.  Thankfully this was resolved without litigation, and thank goodness I work in a community where there was going to be support for such representation.

        But suppose I'm not in Philadelphia but a less LGBT-friendly place, and one for which this is remains a hot button issue for other clients of my firm. What then?  Or what if they didn't like my representation of outspoken liberal bloggers who've said intemperate things from time to time? What guarantees I get any protection at all if these questions become more subject to market forces and external pressure?

        •  Your examples don't fall into that category (2+ / 0-)
          Recommended by:
          EdSF, Adam B

          What the fourth grader said was clearly free speech in addition to accurately describing the relationship. A fourth grader being harassed by a teacher is not a situation between equals. Clearly defending the child from the capricious power of the teacher to harass falls into the category of protecting the 98lb weakling from the brute. That alone, regardless of the level of community support, should in a sense immunize the lawyer from reproach. The same is true of the liberal bloggers.

          Moreover, the lawyers have never had any control over this nor is this unique to the legal profession. Clients have always had the power to say, I don't like you doing business with this person and will take my business elsewhere if you don't cease your relationship. I'm not going to use the excuse that "well if the other guys do it I can too," but on a more fundamental level this sort of thing has always existed. If tonight I'm eating in a restaurant that kicks out a same sex couple at the next table over when it becomes clear to the owner that they are a same sex couple, nobody can force me to ever go to that restaurant again. I have a choice of where I want to eat at I will choose not to frequent such establishments.

          I know this can lead to some people not being able to find a local lawyer out of fear of community backlash, but that's why we have regional and national organizations who cannot be influenced by such pressures that can often pick up the slack. The same is true in this case as Clement has moved onto a firm that is not in as delicate position as K&S when it comes to their image in recruiting new associates out of law school or serving the needs of companies that need to be seen as open and diverse employers.

          I guess I just don't see how you expect this to be regulated when it is something that is already outside of the lawyer's realm of purview.

          "So it was OK to waterboard a guy over 80 times but God forbid the guy who could understand what that prick was saying has a boyfriend."--Jon Stewart

          by craigkg on Wed Apr 27, 2011 at 03:12:44 PM PDT

          [ Parent ]

          •  It's not a question of regulation (2+ / 0-)
            Recommended by:
            craigkg, VClib

            But about the kind of culture and discourse we want to have around the representation of controversial clients.  And regardless of whether there's a broad principle at stake in a case, there's always the possibility of someone saying "don't take that case," whether or not we believe that person is beyond reproach given the equities.  Not everyone shares our values.

            Yes, it's a reality that clients can always say "no"," but the culture around law firms has generally been that this is about things like "you need to hire more diverse attorneys" or specific issue conflicts rather than disagreement with the ideological tenor of a case.

            Look, Clement's going to be fine. Anyone with his credentials, and with a $500,000 retainer he's lugging with him is going to find a landing place quickly.  But what if it were a pro bono matter, and an attorney without his reputation?  That troubles me.

  •  We're always crossing lines and going to far? (4+ / 0-)
    Recommended by:
    craigkg, EdSF, Ian S, lostboyjim

    Complaining publicly about Democrats? We're haters.
    Refusing to donate to candidates who drag their feet? We're being too pushy.
    Chaining ourselves to the White House fence to protest DADT? Our behavior isn't helpful.
    Pressure a law firm to step away from DOMA? We're bullies.

    I'm starting think that some of our Democratic allies want to us to just stay home, shut up, and write campaign contributions.

    I'm gay and I'm pissed. I'm not giving up, I'm not giving in, I'm not backing down, and I'm not going away. I'm one of the Angry Gays. Deal with it.

    by psychodrew on Wed Apr 27, 2011 at 02:32:28 PM PDT

    •  There is no doubt, psychodrew (3+ / 0-)
      Recommended by:
      craigkg, psychodrew, lostboyjim

      that a number of people on this site feel that way, usually people who, I might add, are clueless about our lives and issues. At times, this administration of fierce advocates seems to send that message as well, not to mention the villagers at WaPo and elsewhere. But this is always how it has been for minorities in this country. We should night have high expectations of anyone inside the beltway. As Martin Luther King so wisely realized many years ago the toughest obstacles to equality often pretend to be its friends.

    •  Yeah, it gets a bit... (3+ / 0-)
      Recommended by:
      psychodrew, lostboyjim, craigkg

      tiresome after so long. The diarist hits this out of the park IMHO. I had brought up Loving v Virgina in a comment in an earlier diary but craigkg fleshes the argument out very well and puts the lie to Clement being some some kind of hero.

      Just another faggity fag socialist fuckstick homosinner!

      by Ian S on Wed Apr 27, 2011 at 03:56:37 PM PDT

      [ Parent ]

  •  Great Diary! (2+ / 0-)
    Recommended by:
    craigkg, psychodrew

    I couldn't agree with you more. This wailing and gnashing of teeth over conservictim Clement and his former law firm is silly.

    Just another faggity fag socialist fuckstick homosinner!

    by Ian S on Wed Apr 27, 2011 at 03:59:32 PM PDT

  •  Nice diary (3+ / 0-)
    Recommended by:
    craigkg, psychodrew, Zooey Glass

    I don't see how anyone who has a $500,000 can be claimed to be a victim anyway.

    Adam B, I don't really know how to address your concern, except to say:  I kinda assume this mechanism is already in place.   "Liberal" lawyers tend to gravitate to "liberal" lawfirms, which do pro bono work for liberal causes.  Ditto for conservative lawers, firms, and causes.  

    Minority rights should never be subject to majority vote.

    by lostboyjim on Wed Apr 27, 2011 at 04:34:43 PM PDT

  •  The comparisons to Gitmo (0+ / 0-)

    Give not even a passing recognition that what is at stake is a Civil Statute, not a human life. And K&S took the case voluntarily. Just as THOUSANDS of other attorneys will be happy to do had Clement passed (which he didn't). No one defending DOMA was always an unreachable goal.

    Much of this reeks to me of a common reaction we see when the LGBT community scores a point: it doesn't really count. We got there by illegitimate means.

    Because despite the fact we are numerically tiny, despite the fact that virtually every institution of power, the Government, the Churches, private marketplace, social norms, have for thousands of years united in an effort to annihilate us--and that can be taken literally as well as figuratively--always remember this:

    We are very powerful bullies pulling all the strings to execute our radical homosexual agenda.

    It is better to marry than to be tortured continually with ungratified desire. 1 Corinthians 7:9

    by Scott Wooledge on Wed Apr 27, 2011 at 08:40:53 PM PDT

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