Paul Clement and the New McCarthyism

Here’s my take on the Clement kerfuffle Orin and Eugene blog about below.

After the Obama Administration announced it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA), Congress opted to defend the law on its own. The Bipartisan Legal Advisory Group retained the services of King & Spalding’s Paul Clement, a former Solicitor General who is widely considered to be among the best (if not the best) appellate advocate of his generation.

Clement’s decision to represent Congress and defend DOMA was controversial in some circles, and understandably so. Although DOMA was enacted with broad bipartisan majorities and signed into law by President Clinton, it prevents federal recognition of same-sex marriages, even when sanctioned by state law. For supporters of same-sex marriage, that’s a tough pill to swallow.

Angered over Clement’s decision, the Human Rights Campaign launched a campaign against King & Spalding, seeking to punish the firm because one of its partners dared represent a controversial client. According to HRC, the representation was “a shameful stain on the firm’s reputation.” In reality, what’s really shameful is HRC’s McCarthyite attack on Clement and King & Spalding — particularly given the nation’s sorry history of efforts to prevent effective legal representation of marginalized groups and unpopular causes.

The Los Angeles Times, which supports same-sex marriage, explained the folly of the HRC campaign in an editorial last week.

It’s perhaps understandable that leaders of an advocacy group like the Human Rights Campaign would be outraged at the idea of anyone defending a law that they so strongly believe is discriminatory. But the suggestion that it’s shameful for Clement or his firm to do so misunderstands the adversarial process. For one thing, with sharp-witted counsel on both sides making the strongest possible arguments, it is more likely that justice will be done. For another, a lawyer who defends an individual or a law, no matter how unpopular or distasteful, helps ensure that the outcome is viewed as fair. If DOMA is struck down, the fact that it was defended effectively will make the victory for its opponents more credible. . . .

In criticizing Clement’s law firm for agreeing to defend DOMA, the Human Rights Campaign contrasted that decision with the firm’s admirable record in promoting equality for gay and lesbian employees. But there is no contradiction — unless one believes that DOMA doesn’t deserve a defense. We hope Clement loses, but we don’t begrudge him the assignment. Even a lawyer of his skills will find it hard to defend a discriminatory law like DOMA.

In the end, the criticism was too much for King & Spalding, and the once-proud firm asked to withdraw its representation, citing a failure of the vetting process. Clement, to his credit, found this unacceptable, and has resigned from the firm. This is a major loss for the firm, which had been building an appellate practice around Clement, as is the firm’s apparent willingness to discard its integrity when placed under fire. King & Spalding is willing to defend Guantanamo detainees, free of charge (and rightfully so), but it apparently lacks the courage to defend controversial legislation and honor commitments to clients once retained.

When some conservatives attacked private law firms and threatened retaliation for defending accused terrorists, the bar responded with outrage — and rightfully so. (My own posts on the subject can be found here and here.) At the time, we heard all the same arguments we are hearing now from HRC and its defenders — the right to legal representation does not entail the right to representation from any particular lawyer; attorneys should be held accountable for who they choose to represent; attorneys should be punished for defending the wrong side; and so on. Similar arguments have been made throughout history in efforts to discourage representation of unpopular clients and causes. (Indeed, I would not be at all surprised to learn that law firms and prominent were once discouraged from defending homosexuals who were persecuted for their sexuality.) Those arguments were wrong in the past, and they are wrong now.

Paul Clement is to be commended for his courage and honor — whether or not he wins his case against DOMA. Even those who support same-sex marriage (as I do) should be thankful for attorneys like him who are willing to defend unpopular laws and positions, and disappointed at a large law firm’s willingness to cave so quickly. Indeed, King & Spalding has given existing and prospective clients reason to wonder whether it will stand firm if asked to defend unpopular or potentially objectionable positions on their behalf. A law firm’s reputation, once diminished, is not so easily restored.

UPDATE: Some suggest that King & Spalding may have withdrawn its representation due to objections over certain particulars in the representation agreement that would have limited the outside activities of firm attorneys. If this, and not the HRC campaign, was the concern, it seems to me that King & Spalding had plenty of options short of terminating the representation. And even if it saw no other option, say because the client refused to budge, it could have made clear this was the reason.

SECOND UPDATE: Some commenters seem to misunderstand my position. No, I do not believe the U.S. Congress is a “marginalized” group, nor do I feel it is a victim here. My primary concern is that if it is appropriate to attack law firms and attorneys based upon the identities or positions of their clients, and if major law firms can be dissuaded from maintaining representation of unpopular clients or causes, then those groups which are truly “marginalized” have the most to fear. While there is little doubt the House could obtain capable representation without King & Spalding or Paul Clement, other groups might not be so fortunate. That is what is ultimately at stake here.

THIRD UPDATE: I heartily recommend this commentary by appellate litigator and University of Chicago adjunct professor Steve Sanders. Interestingly enough, Sanders was Indiana state coordinator for the Human Rights Campaign from 1998-2002 and a member of the Obama campaign’s national LGBT steering and policy committee.