Anti-DOMA, Pro-Clement

It is gratifying to see that many of those who oppose DOMA have nonetheless praised Paul Clement’s willingness to defend the law, and his refusal to abandon the representation. From the Washingtonian :

Clement, who has now joined the boutique law firm Bancroft, has plenty of support among his peers in the Washington legal community. Theodore Olson, the prominent Republican attorney who made headlines when he agreed to challenge California’s same-sex marriage ban, praises Clement’s “abilities, integrity, and professionalism.” Olson, who like Clement was a solicitor general during the George W. Bush administration and is a star Supreme Court advocate, tells, “I think it’s important for lawyers to be willing to represent unpopular and controversial clients and causes, and that when Paul agreed to do that, he was acting in the best tradition of the legal profession.”

Seth Waxman, a partner at WilmerHale who served as solicitor general during the Bill Clinton administration, agrees. “I think it’s important for lawyers on the other side of the political divide from Paul, who’s a very fine lawyer, to reaffirm what Paul wrote. Paul is entirely correct that our adversary system depends on vigorous advocates being willing to take on even very unpopular positions. Having undertaken to defend DOMA, he’s acting in the highest professional and ethical traditions in continuing to represent a client to whom he had committed in this very charged matter.” Waxman’s firm is fighting against DOMA in one of the lawsuits challenging the statute.

Appellate litigator and University of Chicago adjunct law professor Steve Sanders has also written a comment on the UofC’s faculty blog:

For those of us who believe the law requires marriage equality for gays and lesbians, the firm’s decision to drop the DOMA matter is indeed, as Ben Smith of Politico writes, “a real victory for supporters of same-sex marriage — and mark[s] what seems like real marginalization for its foes.”  But as a lawyer who recently worked in the Supreme Court and appellate practice group of a major national law firm, I’ve found myself uncomfortable with the demonization of Clement and K&S and with the insistence by some gay-rights supporters that defending DOMA’s constitutionality is not only legally wrong but morally unconscionable.  Those who would label lawyers like Clement as (at best) amoral mercenaries do not understand how the world of public-law appellate litigation works. . . .

Clement is certainly a conservative, and he always seemed quite comfortable defending the Bush administration’s policies as SG. But I think it would be wrong and unfair to assume he must be some sort of anti-gay ideologue. I have no doubt that some of his clients in Congress might fairly be described that way. But every constitutional lawyer knows there is a basic difference between whether something is sound policy, and whether it violates the Constitution. Clement’s job in defending DOMA (he reportedly will continue the representation through another law firm) is about the latter question . . .

It’s worth remembering that until two months ago, the Obama administration’s lawyers also defended DOMA. DOMA may be an easy question as a matter of fairness and equality, but its status as a matter of constitutional law — particularly whether it should get heightened scrutiny — is not a slam dunk, and its opponents would be well advised not to confuse the two issues. DOMA is not yet before the Supreme Court, but Clement almost certainly calculated that it will get there eventually. . . .

I also think Clement was correct when he wrote in his resignation letter that his “thoughts about the merits of DOMA are as irrelevent as my views about the dozens of federal statutes that I defended as Solicitor General,” and that “[d]efending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”

Of note, Sanders is not only an opponent of DOMA. He was also 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.

UPDATE: More from Benjamin Wittes, another DOMA opponent, here.

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