The big gay rights news today is that the law firm King & Spaulding, which had previously signed on to defend the Defense of Marriage Act at the behest of House Republicans, has withdrawn its representation in the face of outrage by liberal and LGBT groups. A lot of folks had wondered whether K&S would face a backlash in its efforts to recruit new attorneys, as the current generation is quite hostile to homophobia and legally-sanctioned anti-gay discrimination. Former Solicitor General Paul Clement, who was to lead the DOMA defense, has resigned from K&S effective immediately, and will continue to defend DOMA at another firm (Bancroft PLLC).
While I was heartened to see that the political muscle of the pro-equality community has grown strong enough that it could provoke such a reaction, I admit some unease for K&S' decision and some sympathy for Clement's resignation. Regardless of whether K&S was correct to take this case in the first place -- and I too find it mystifying that K&S didn't see these problems a mile off -- once they agreed to do it, it's disconcerting to see them then withdraw under fire. As Clement noted in his resignation letter, "Defending unpopular positions is what lawyers do." There are lots of unpopular clients and positions out there, and they deserve representation.
Representing DOMA is kind of like representing a guy who robbed a convenience store. From an outsider's vantage point, you get him an attorney, work on the case diligently, and then hope the due process of the courts sees him convicted. Same with DOMA -- it deserves to have its day in court, and at the end of that day, it deserves to be struck down.
UPDATE: Clement is getting praise from across the legal profession, including from Clinton SG and liberal icon Seth Waxman (currently a partner at WilmerHale).
But does K&S have the right to impose a "gag rule" on people in the firm, agreeing to restrict their ability to support the repeal of DOMA -- as it did in its agreement with the House?
ReplyDeleteAnd what's wrong with trying to create a moral -- if not a legal -- imperative that says certain LEGAL positions aren't entitled to a constitutional defense -- especially by a firm that calls itself pro-gay -- when there's not an actual individual client at stake?
The gag order was ridiculous.
ReplyDeleteAnd I don't disagree that K&S probably shouldn't have taken the case, and that if they were considering taking the case, it would have been perfectly appropriate to try and convince them otherwise. But once you take a case, I think you have to stick it through.
Paul Clements' problem is that there are nine DOMA cases pending in several jurisdictions. King & Spalding has sufficient staff to assist; a six attorney firm is going to be stretched beyond its capacity to undertake this assignment. I'm not so sure that Boner will want to go that route. He may try to find another law firm.
ReplyDeleteClement's new firm is only likely to have a problem handling this job if you agree with the rightwing folks who claim the Obama DOJ hadn't really tried to defend DOMA -- i.e., if the firm is basically going to have to start from scratch in briefing. OTOH, if the prior briefings on DOMA covered the plausible legal arguments for its constitutionality and had extensive research undergirding those arguments, I don't think Clement will be overwhelmed.
ReplyDeleteAlso, the hourly rate Congress is paying looks a lot less discounted now that Clement's at a tiny no-name DC firm instead of a large national one. While I'm familiar with Dinh's work at the Bush Admin, I'd never heard of Bancroft PLLC before and judging by their website they haven't done much of note. So they may be fully capable of handling this case anyway if they're not very busy with other work.