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.