One of the saddest stories in the news today is King & Spalding’s withdrawal, after only a week, from its representation of the U.S. House of Representatives in connection with the Defense of Marriage Act.
In February, Barack Obama’s Department of Justice announced that it would not carry out its constitutional and statutory duty of defending the Defense of Marriage Act in federal court. This itself was disgraceful: DOMA was passed by the House and the Senate and signed into law by President Clinton. No administration should abandon the defense of a properly enacted statute that is, at a bare minimum, arguably constitutional, simply because the political winds have shifted. (DOJ did defend the act in 2009.)
After DOJ stopped defending the act, the House of Representatives retained former Solicitor General Paul Clement, a partner in King & Spalding, to represent it in upholding the constitutionality of DOMA. Predictably, this enraged certain homosexual activists:
Before the firm announced its withdrawal, Human Rights Campaign and Equality Georgia were planning a protest Tuesday morning at King & Spalding’s offices in Atlanta. In addition, a full-page ad denouncing the firm was set to run Tuesday morning in the Atlanta Journal-Constitution, one person familiar with the plan said.
King & Spalding promptly folded:
On Monday morning, King & Spalding chairman Robert Hays Jr. announced that the firm was backing out.
“In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate,” Hays wrote. “Ultimately, I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”
The law firm’s action was unusual, to say the least. No doubt there is precedent for a law firm abandoning a client because it comes under political pressure, but I can’t think of one offhand. Most lawyers think they are made of sterner stuff than that.
Clement, outraged, resigned from King & Spalding and fired off a letter to the firm’s management:
“I resign 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. Defending unpopular clients is what lawyers do,” Clement wrote to Hays. “I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it.
“Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. If there were problems with the firm’s vetting process, we should fix the vetting process, not drop the representation.”
As Clement noted, defense of DOMA is “extremely unpopular in certain quarters.” But lawyers represent unpopular clients and unpopular causes all the time. Many of America’s most prominent law firms lined up to represent terrorists, including those associated with the September 11 attacks, in various legal proceedings. On the left, it is apparently fine to advocate for mass murderers, but not for the House of Representatives or the traditional definition of marriage.
One striking aspect of this incident is that DOMA is not especially unpopular. It may well enjoy the support of most Americans, and, in any event, it is certainly a lot more popular than terrorism. But in elite circles–those that matter to the management of firms like King & Spalding–the radical gay lobby enjoys a special status.
That said, we will never know whether the law firm reversed course out of conviction or cowardice, because there is another difference between this case and the pro bono representation of terrorists: while some may disapprove of the latter representations, they are not crazed. They will not show up in the law firm’s lobby, and they will not take out full-page newspaper ads. Angering ordinary citizens is safe; angering the extreme fringe of the gay lobby is not.
Jennifer Rubin states the case succinctly: “The left decides who gets lawyers.” She cites chapter and verse on the left’s support for lawyers who defend unsavory clients, as long as the issues involved are not dear to the hearts of liberals, like gay marriage.
I have always been proud to be a lawyer, for one reason: even mediocre lawyers fight like hell for their clients. You may not have a friend in the world, but if you hire a lawyer you get his or her undivided loyalty. No matter what the rest of the world thinks of you, your lawyer is on your side. Period. And it is remarkable how often a lawyer’s vigorous representation of a client who was despised, and whose position was thought hopeless, has carried the day. When a major law firm like King & Spalding puts politics above its duty of loyalty to its client, it is a sad day for our profession and for our country.