DOMA Debacle: The Good, The Bad, and the Grand Moff Tarkin
I’m writing to address some of the good and bad arguments about Paul Clement’s and King & Spalding’s decisions regarding DOMA. This will make no sense if you don’t know what happened, so first I’ll recap.
The current Department of Justice finally decided, in a limited way, to stop defending DOMA in certain jurisdictions where the law was really bad for DOMA, saying there was no good argument for the law. Speaker of the House Boehner didn’t really want that albatross around his neck, but couldn’t just let the opposition to DOMA prevail either. So he set out to hire a lawyer to defend the law. He got Paul Clement, former Solicitor General under GW Bush, after Ted Olson. Clement had returned to private practice at King & Spalding, an Atlanta-based firm. K&S came under some pressure, and announced, fuck this, we changed out minds. But not literally. What K&S actually said was a lot more carefully crafted, and involved a the explanation that the assignment was not properly vetted. Clement, echoing Eric Cartman, said screw you guys, I’m going home. (The actual letter is here.) He went to go work at a litigation boutique with another Bushie, and — importantly — kept the case.
On legal blogs, there are a lot of arguments about what to think of all this, and I’m throwing in my two cents. Some of these arguments are good, and some of them are bad.
Bad: Doesn’t everybody deserve a defense???!!eleventyone! Sure! In criminal cases! But only some of those! In 1963, the liberal activist Warren court established the principle that where the government is trying to throw your ass in jail you get a lawyer whether you can pay for one or not, whether people think you’re icky or not. That goes for what are now called A misdemeanors most places, where sentences longer than six months are possible. B misdemeanors fall below the line, and in many places there are public defenders for these but it’s not a rule. There isn’t a rule like this for civil cases. If you think you have a civil case but you can’t afford a lawyer, you may just not be able to get one. If you think you have a civil case but you can’t find a lawyer who will take it, you may just not be able to get one. If you get sued, but nobody wants to defend you on terms you are willing to work under, you may just be out of luck.
K&S is not a public service. It’s a firm owned by its equity partners. If a case exposes them to risks they don’t like — risk of not getting paid, risk of pissing off important clients, risk of public relations or political backlash — they don’t have to take it. In fact, they can decide not to take it for any reason, or no reason.
If I were a K&S partner trying to convince my partners not to take this matter, I might have made the following business case argument: “Did you see the Prop 8 trial? Have you read any of the briefing on the DOMA appeals? Whichever side you agree with as a policy matter, the arguments Paul would make are bad arguments, and this is a high profile case that he’s likely to lose, very publicly, making bad arguments, which will make us look like bad lawyers and damage the firm’s market value. I don’t want to get paid to look like idiots and get beaten badly in public.” That alone ought to be persuasive.
One more piece of the puzzle: there are some reports that the assignment came with a big string attached, a bar against the firm’s employees — specifically those not working on the engagement — speaking against DOMA. If that was the sticking point, then the “properly vetted” language K&S is using is a lot less weasely and perhaps they didn’t think through what they would mean or how it might affect their staff, or got nervous that agreeing to that was a labor law violation (I don’t know if it is or not.)
Bad: Lawyers exist to defend unpopular clients. Lawyers exist to participate in our dispute resolution mechanism, or to guide clients through transactions so as to avoid it. Not every case is public or politically charged or has a lot of meaning outside the parties involved. Some cases are about whether this company violated its distribution agreement with that company or whether this franchisee voided her franchise agreement or whether somebody infringed somebody else’s intellectual property. Some folks think lawyers can or should only represent either clients who are right, or only clients who are the less powerful (those two things may conflict) or something like that, and those people watch too much TV.
Representing unpopular clients because it’s in the public interest is something mostly done by nonprofits, like the ACLU, and they don’t have any obligation to represent everyone, either. They pick and choose, too, just based on different criteria.
Good: K&S should have turned it down initially instead of taking it and then backing out. This is true! And by saying that the vetting process was compromised, they are basically conceding that they should never have agreed. But that mostly hurts the firm. They look like schmucks, they lost a heavyweight in Clement, and their other clients wonder if K&S would bail on them if the representation brought bad publicity. On the other hand, the proponents of DOMA have not been harmed. They hired Paul Clement, they got Paul Clement. Lawyers break up with firms to keep clients or cases sometimes — that’s how Prop 8 trial lawyer David Boies left Cravath, when his representation of the Yankees conflicted with the firm’s commitments to its other clients.
Bad: Paul Clement is a hero for the principle that all sides deserve representation. There are two reasons this is a bad argument: the procedural and the practical.
Procedurally, let’s look at how we got here. DOMA had a lawyer. DOMA’s lawyer was Eric Holder, the Attorney General of the US, the highest ranking lawyer in government in the USA. Much to the chagrin of most of the people who put his boss in office, Holder’s DOJ defended DOMA and DADT and the shitty homophobic laws that Clinton signed. Then, one day, he said, basically, having looked at the current legal situation, in many places there’s just no coherent argument for defending this law anymore. Now, nonlawyers might think that making inane, shitty and incoherent arguments goes with the job. But in the Federal system and in probably every state, there are actually rules against making terrible arguments! Some arguments are so bad that they’re called frivolous, wholly without foundation in existing law or by reasonable change in existing law, and lawyers can be sanctioned for making them. Arguments have to be really, really bad to run afoul of the frivolous practice rules, but it happens, and more to the point, it shows that lawyers are required to actually exercise professional judgment and decide not to make every ineffective loser argument. DOMA had a lawyer, and DOMA’s lawyer said that DOMA’s defense was a loser. Boehner went shopping for someone with an opinion that was more palatable to the GOP base.
Practically, there is such a thing as the wrong side of history. Remember all those brave, principled lawyers who opposed Thurgood Marshall when he sued to integrate the University of Maryland Law School? Remember the prosecutors who argued that that the Chicago 7 engaged in a conspiracy, or the lawyers who argued that the US could shove anyone of Japanese descent into camps? No? No. They’re not in anyone’s pantheon of heroes because there’s no good place in history for those who labor mightily in service of a bad cause. Lots of folks go to law school now thinking about Marshall, Kunstler and Weinglass because they were on the right side, and which side they were on matters.
Good: Lawyers are not their clients, it’s the clients who are responsible for the positions, lawyers just help them present their case. Lawyers are generally not activists. They’re generally paid professionals. There are duties not to make bad arguments or lie to the Court, and some lawyers — like criminal prosecutors — are supposed to have higher mandates that amount to a duty to do the right thing (whether they actually operate that way is another post that I’m not going to write). Most lawyers are doing client service, not picking the side they want to win. If Clement is doing it for the money or the prestige, I see this as a moral defense. Briefcase, lunchbox, paycheck. It’s a defense, but it’s the opposite of an argument for heroism. The principle of defending the right side is reserved for the right side and the principle of defending the weak against the powerful is not available to the powerful defending the status quo.
That’s dependent on an assumption: that Clement is taking this because it’s money and a chance to get before the Supremes on a big case again, for career reasons, and that he’s telling the truth when he says this has nothing to do with his feelings about the statute. If he’s taking this because he really wants to prevent marriage equality, well then it’s not just his client’s position, it’s his position.