<< Supplemental Brief in Plata | Main | Holder says he's not going anywhere >>

Defending Jihadists But Not Marriage


The legal profession views it as an obligation and an honor to defend unpopular people and causes.  That is why, despite my decided misgivings about standard criminal defense tactics (such as huckstering for fake mental conditions), I do not view criminal defense per se as a bad thing.  I did some of it as a Stanford Law student, and, as I have said here previously, it is sometimes essential in order for the rule of law to prevail.  In the Duke lacrosse rape hoax, for example, it was only the courage of criminal defense lawyers that stood between a corrupt, race-baiting prosecutor and three falsely accused students.   In a Duke community awash in Political Correctness, it took guts for defense counsel to step forward in behalf of "privileged white jocks."

It was also honorable for members of the legal profession to defend even truly awful and dangerous people, such as those being held at Gitmo.  It's not that terrorist detainees deserve anything but the severe sentences (and in some cases, execution) they have worked so hard to earn.  It's that they deserve, as any human being deserves, a fair determination of actual guilt.  Thus, unlike some conservatives, I did not condemn the Department of Justice for hiring attorneys who, in an earlier life, provided pro bono representation for Gitmo prisoners. 

Today, however, the legal profession displayed cowardice on a grand scale.   


Before going any further, I should say that neither CJLF nor I take any position, for purposes of this blog, on the Defense of Marriage Act (DOMA).  That is simply not a subject in criminal law.  But the integrity and courage of the legal profession are very much issues in criminal (and every other kind of) law, and they were dealt a blow today.

As readers may know, the Administration has decided to abandon its defense of DOMA.  However, the House of Representatives hired its own counsel  --  the prominent Atlanta firm of King & Spalding  --  to do the job the Administration left behind. 

Today, however, King & Spalding, after heavy lobbying by gay activist groups, walked away from its client in mid-stream.  In response, former Solicitor General Paul Clement, who had been handling the case for King, resigned on the spot.  As my friend Ed Whelan recounts:


According to Politico, the King & Spalding law firm, which had agreed to serve as counsel to the House of Representatives in defending DOMA, is now backing out of the representation. Its about-face is a craven caving to pressure from gay-rights groups. King & Spalding chairman Robert Hays deserves special recognition as a profile in cowardice.

In response to the King & Spalding decision, superstar lawyer (and former Solicitor General) Paul D. Clement has just resigned from the firm "effective immediately." Here are some excerpts from Clement's resignation letter:

I take this step not because of strongly held views about the statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General.

Instead, 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 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.

Clement closed his letter by quoting from a great lawyer, former King & Spalding partner (and former Attorney General and former federal appellate judge) Griffin Bell: "You are not required to take every matter that is presented to you, but having assumed a representation, it becomes your duty to finish the representation."

Clement will continue representing the House of Representatives in his new capacity with Bancroft PLLC.

LA Times vs. Human Rights Campaign


To my way of thinking, the legal profession has come to a low ebb when it is deemed honorable to defend bloodsoaked criminals and terrorists, yet not merely not honorable, but unacceptable, to defend the constitutionality of traditional marriage.  This is not, in my view, because traditional marriage is "good" and criminals are "bad."  It's because the legal profession loses its soul when it forgets its indispensable role in helping us distinguish the two.

Leave a comment

Monthly Archives