The Best Offense Is a Good Defense

Why even opponents of DOMA should want it to get a vigorous defense.

Paul Clement outside the U.S. Supreme Court

The Washington legal world was knocked upside the head Monday with the announcement that King & Spalding —the Atlanta-based firm that signed up to defend the Defense of Marriage Act on behalf of House Republicans—had decided to ditch its client. The firm’s chairman, Robert Hays Jr., issued a terse statement indicating that accepting the contract with House Republicans had, after all, been a mistake: “In reviewing this assignment further,” he wrote, opaquely, “I determined that the process used for vetting this engagement was inadequate.” But that news was nothing compared with the announcement by former Solicitor General Paul Clement—around whom King & Spalding had built its appellate practice —that he was leaving the firm in protest.

In a letter released later Monday, Clement wrote that he was quitting “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.” He refused to state his own views of DOMA but noted, “When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.” (Disclosure: Clement participated in Slate’s discussion at the end of the 2009 Supreme Court term.)

Hays’ blurriness notwithstanding, there seems to be little question about why King & Spalding decided to withdraw. As Greg Sargent reports, Human Rights Campaign, the gay rights advocacy group that had been agitating against Clement’s defense of the law, is happy to claim responsibility for pressuring the firm to abandon its representation. The group indicated that while it did not pressure other clients to leave the firm, it did “contact King and Spalding clients to let them know that the group viewed the firm’s defense of DOMA as unacceptable.” Fred Sainz, a spokesman for the Human Rights Campaign, explained: “We are an advocacy firm that is dedicated to improving the lives of gays and lesbians. It is incumbent on us to launch a full-throated educational campaign so firms know that these kinds of engagements will reflect on the way your clients and law school recruits think of your firm.”

This conduct has enraged supporters of DOMA and set the right-wing blogosphere into orbit. Deservedly so. And I say this as someone who believes the Defense of Marriage Act to be a cruel and indefensible law, defining—as it does—marriage solely as a union between a man and a woman, and stomping over states’ rights in order to get there. But that is beside the point. Zealous advocacy to defeat the law in court is commendable. Threatening lawyers out of defending it is both shortsighted and wrong.

When Liz Cheney launched her contemptible attack on the Justice Department lawyers who had defended Guantanamo Bay detainees last year, liberals and conservatives alike rightly called her out for fundamentally misunderstanding that the legal system requires zealous advocacy on both sides of unpopular cases. (Here is where I insert the obligatory reminder that John Adams defended British soldiers accused of mortally wounding Americans during the Boston Massacre in 1770. Although his defense of the traitors was wildly unpopular and his firm suffered mightily for it, Adams later described it as “one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.”)

What’s the difference between Liz Cheney’s attack on the Gitmo lawyers and the gay rights groups’ pressure on King & Spalding? One argument, advanced at the Baltimore Sun, is that this is the difference between criminal and civil proceedings; the Constitution guarantees a right to counsel in criminal trials. But no 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.

Ben Wittes makes this point when he writes: “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?”

Don’t like the idea of the taxpayer financing the GOP’s personal hate-fest? Me neither. But that was the deal struck when the Obama administration decided not to defend DOMA itself. A lot of taxpayers dislike the idea of footing the legal bill for the defense of death row inmates or the installation of crosses on public lands. That’s what the system of justice sometimes demands.

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.