Defending the indefensible

King and Spaulding backs out.

The good news is that King and Spaulding has apparently decided that defending the Defense of Marriage Act really isn’t a good move for the firm. The bad news is that John Boehner will still get to spend half a million dollars of your money to pay Paul Clement to fight off the Gay Menace.

The absurd news is Clement’s self-righteous claim that “defending unpopular clients is what we [lawyers] do.” (He didn’t add “at $540 an hour.”) Yes, every murderer has a right to a defense. But can you really call arguing in court for the right of bigots to make life miserable for gay people “defending unpopular clients”?

The notion that an individual under legal attack ought to have representation is a fundamental one. If Clement had agreed to defend someone accused of an anti-gay hate crime, the firm would be wrong to back out.

But political litigation is political. Clement was putting King & Spaulding on one side of a controversial question, and if he did so without consulting first I think his partners had every reason to say “Include us out.”

Footnote The firm’s withdrawal statement is pretty mealy-mouthed – “the process used for vetting this engagement was inadequate” – so it’s hard to guess the motivation. I’d like to imagine a star rainmaker coming into the chairman’s office, closing the door, and saying, “Bob, I generally try to keep my personal life out of the office, but  …”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

33 thoughts on “Defending the indefensible”

  1. IAAL. IIALiberalL, who thinks that DOMA is a disgrace, and believes that the Justice Department is justified in its very rare move of not defending it. And yet I am disgusted by King and Spaulding’s action.

    Lawyers are prostitutes. Lawyers should be prostitutes. It’s their role. They have been abandoning this role recently, and not only to avoid defending certain unpopular clients. Big law firms routinely refuse to defend people whose claims might affect the fate of their corporate clients, even if there is no conceivable ethical obligation to their doing so. (It’s called “business conflict.”) Civil legal practices have collapsed to “defense side” or “plaintiff side,” or “husband side”/”wife side”. Some prosecutors go so far as to make noises that defense counsel are co-conspirators with their clients. (The Brits don’t have a specialized prosecution or defense bar–a criminal barrister plays both sides.)

    This is really hurting the quality of lawyering, and the integrity of the bar. If you don’t understand the other guy’s case, you can’t represent your own side as effectively. And if you think that your client is always on the side of truth and light, you become a self-righteous prig, again a less capable attorney. (I often worry about prosecutors.) Not only less capable: less ethical. The legal system does not exist to determine truth or vindicate justice. It exists as a necessary social lubricant and glue, most effective when it has some relationship to truth and justice. But the process of lubrication and gluing is far more important, at least to the legal enterprise.

    FWIW, I doubt it was a star rainmaker that caused King & Spaulding to change its mind. More likely, it was an associates’ revolt.

  2. Scrooge: I agree, to a point. I think it would be wonderful if we required judges to have experience in both prosecution and defense, for example. People tell me a lot of them do have such experience, but I have my doubts. I’d be interested to see figures on it.

    Having said that, lawyers are human and I think it likely they do at least a somewhat better job when they believe in what they’re doing, even if we’re all supposed to pretend this doesn’t matter. I am sure there are socially conservative lawyers out there who’d love to get this case.

    But I disagree that the system isn’t there to find justice. That is at least some of the reason it exists. We humans are flawed but overall I do believe the legal system can make us better. But it won’t if we all give up on it.

  3. Maybe it was something about the fact that the engagement agreement purported to prohibit K&S employees from lobbying to change DOMA, even employees not directly working on the matter. That seems a bridge way too far. It would be like the murderer you defended prohibiting the firm’s employees from advocating victim rights legislation.

  4. NCG:
    Maybe I shouldn’t have been so dogmatic about the point of the legal system. There are a lot of people who think that the legal system has something to do with justice, and this perception is certainly a key toward legitimation of any legal system.

    Partially, I’m temperamentally indisposed to be associated with anything as hifalutin as “justice.” Justice is what the Serbs want to serve on the Croats, and the Croats on the Serbs (to pick a random example.) Partially, I view the law as a conservative instrument which generally works in the interests of the powerful, who demand order rather than justice. (And they are quite capable of wrapping their agenda in the rhetoric of “justice.”) There are occasional exceptions, but the Warren Court hasn’t been around for a long long time. Looking for justice in the law is likely to be a distraction–you’re not going to find it too often, unless you have very selective vision. Our personal and political lives are the place to look for justice, and any time wasted in a courtroom is, to me, a distraction from more important venues.

  5. Scrooge: you’re certainly right that there is a great deal of politics in the law, more than many of your highfalutin’ legal types want to admit. And I also agree that we on the left have a lot of work to do to make the legal system more balanced. We aren’t even at “fairness” right now, not to mention justice.

    But I still think there’s hope. And I still think there is more defense for the unpopular to be found in the courts than the polling place, in general. I guess that brings us around to education reform, really. Anyhoo. Full-court press time.

  6. (Kleiman): “But can you really call arguing in court for the right of bigots to make life miserable for gay people ‘defending unpopular clients’?
    You can call defending the Defense of Marriage Act “defending the Constitution”, which leaves to States those powers not given to the Federal government. How does defense of traditional marriage qualify as “the right of bigots to make life miserable for gay people”? Expansion of the definition of “marriage” to include homosexual couples is a tax increase. Some of us oppose tax increases. You may argue that society derives no benefit from the special consideration which laws and customs give to heterosexual couples. That’s a different argument.
    The “official acts of other states” clause has long puzzled me. I see that title granted to portable property in one state would remain valid in another. It would be awkward if a legal marriage in one state became statutory rape in another when the couple moved. Does this principle of respect for the official acts of other states apply to a license to carry concealed firearms?
    Kleiman just can’t seem to shake the JournoList habit.

    In other words, find a rightwinger’s [sic] and smash it through a plate-glass window. Take a snapshot of the bleeding mess and send it out in a Christmas card to let the right know that it needs to live in a state of constant fear. Obviously I mean this rhetorically.
    And I think this threads the needle. If the right forces us all to either defend Wright or tear him down, no matter what we choose, we lose the game they’ve put upon us. Instead, take one of them–Fred Barnes, Karl Rove, who cares–and call them racists.

    Substitute “bigots” for “racists”.
    You just make yourself look silly in the eyes of people who know better. Opposition to gay marriage need have nothing to do with bigotry. Opposition to affirmative action need have nothing to do with racism. As a free marketeer, I’m too familiar with the accusation of racism, and it’s absurd. For example: I know only three personal phone numbers by heart: my own, one ex girlfriend (still friends), and one friend. I’m the only caucasian of the three. Not a strange ratio here in Hawaii, I expect.
    Three of my friends died of AIDS and they wern’t Haitians, hemophiliacs, of users of intravenous drugs.
    Call “racist” or “bigot” and you reveal your own prejudice, literally. “Pre-judge”.

  7. Why would defending DOMA be “defending the Constitution”? DOMA is just a law. It’s not part of the Constitution. And if indeed the Constitution requires that matters about who can be married should be left to the States, then DOMA, being a federal law concerning who can be married, would be unconstitutional.

  8. “Include us out.”

    So King and Spaulding not only had to do the right thing, they had an obligation to be as confusing as possible in the process?

  9. The federal law reinforces the Constitutional principle of federalism. It makes explicit the power of individual States to go their own way, subject to explicit exceptions (e.g., 2nd Amendment protections of weapons, 4th amendment protection of property).

  10. Regardless of whether or not it reinforces a specific view of the principle of federalism, it does so by very explicitly diminishing the constitutional requirement that states give full faith and credit to the laws of other states. “Federalism” is not itself a constitutional requirement and must give way to full faith and credit obligations of states to one another, or federalism as the founders understood it is undone.

  11. I do not and cannot approve of outside pressure in these situations. This particular case might not make my top 100 list of things to be upset about, but it is certainly wrong.

  12. (Curious): “ (DOMA) does so by very explicitly diminishing the constitutional requirement that states give full faith and credit to the laws of other states.
    This needs definition, as I suggested. Concealed carry? Does a Pennsylvania license to hunt deer imply permission to hunt deer in Wyoming? The dispute in Kelo turned on whether local officials could adomp different definitions of “public use” or “public purpose”. DOMA allows local officials to adopt local definitions of “marriage”.
    (Curious): “ ‘Federalism’ is not itself a constitutional requirement…
    Amendment 10

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
    (Curious): “…and must give way to full faith and credit obligations of states to one another, or federalism as the founders understood it is undone.
    I don’t see that. Federalism and “full faith and credit” conflict. Otherwise, one State could enforce all kinds of policies on other States.

  13. “The notion that an individual under legal attack ought to have representation is a fundamental one.”

    How about the notion that an act of Congress ought to have competent defense when it’s attacked in the courts?

  14. Passing By, the underlying problem I see is that the adversarial system is not a good fit for the judicial review of legislation. If you’re familiar with comparative constitutional law, you will know that there are countries that allow constitutional challenges to laws without requiring anybody to defend them (and in some cases, not even permitting an opposing party); this works just fine, so having an active defendant who is represented by counsel is not inherently necessary.

    Obviously, the adversarial system is what we have in the United States, and what our courts are built around, so we can’t just ditch it. So I agree that since we are dependent on the adversarial system as the basis for determining the truth, then we need to have competent adversaries to approximate the truth the best we can.

    Incidentally, this is a somewhat separate issue from having legal representation in criminal cases; there are plenty of other legal systems that dispense with the adversarial process in criminal cases, but still consider competent legal representation essential for a fair trial. This is indeed a far more fundamental assumption than that of a law requiring an attorney (or even a party) defending it in court.

    I still disagree with Mark for the reasons stated above. When he asks, “[b]ut can you really call arguing in court for the right of bigots to make life miserable for gay people ‘defending unpopular clients’?”, yes, you absolutely can do that when it is done through defending an existing statute. Mind you, it’s a waste of money, and I consider DOMA to be an odious law myself that is not going to survive for long, one way or the other, but legal systems do not aim at being efficient; they aim at being correct (within the limits of human fallibility). That includes following strictly neutral procedures even in cases that appear to be open-and-shut on their face so as not to presuppose the decision. Feel free to blame the people who lobbied for DOMA, feel free to blame the 104th Congress that passed the act or President Clinton who signed it into law; but I see no point in attacking the lawyers who are defending a properly enacted statute in an adversarial system.

  15. I wouldn’t be surprised if Paul Clement’s hourly billing rate were twice $540/hour. I would be astonished if it were as low as $540/hour.

  16. It might be worth noting that competent representation is not an issue in this case. Any sexy high-profile Constitutional case is going to attract very good lawyers on both sides. Heck, Brown v. Board was defended by none the less than John W. Davis, the Davis in Davis Polk and the 1924 Democratic nominee for President. Even if Paul Clement hadn’t stepped forward, the American Taliban has some excellent lawyers on its side.

    What I think is at issue in this thread (despite Malcolm’s attempt to introduce his Tentherism theory) is the issue of a lawyer’s (or a law firm’s) relationship to clients and causes.

  17. From what I understand, King & Spaulding came to regret its decision to accept the case and withdraw for two reasons. First as Barbara noted, the engagement agreement could be read to prohibit K&S employees from lobbying to change DOMA, even employees not directly working on the matter. This is a problem for a BigLaw firm like King & Spaulding, which has an associate that is the president of the Stonewall Bar Association of Georgia and touts its LGBT affinity group. The agreement could also make it harder to recruit qualified candidates.

    Second, there are rumors that King & Spaulding’s corporate clients, particularly Coca-Cola, were uncomfortable with K&S’s defense of DOMA. One would hope that a firm would resist such pressure, but that is unlikely where your major clients are unhappy. Nonetheless, I am less troubled by this case because Congress is without representation. It keeps Paul Clement as its advocate, and Mr. Clement moves to a firm that is more simpatico with his views.

  18. @Malcolm Kirkpatrick, Amendment 10, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    I don’t see anything in the 10th amendment that gives states or the federal government the right to redefine the marital status of individuals who legally marry in one of the 50 states. That is what DOMA attempts to do, and it is not a constitutional ambiguity.

  19. (Curious): “I don’t see anything in the 10th amendment that gives states or the federal government the right to redefine the marital status of individuals who legally marry in one of the 50 states. That is what DOMA attempts to do, and it is not a constitutional ambiguity.
    What about concealed carry weapon licenses? Must New York bow to Arizona’s rules? What rights or privileges that one State confers must other States acknowledge? That is the issue. I really would not care one way or the other if all that was at stake was a word. However, marriage confers access to a partner’s employer-funded health insurance, and governments employ millions of people. There’s a potentially large financial liability at issue with a redefinition of “marriage”. Repeal inheritance and estate taxes, State-mandated employer-funded medical care, and taxpayer-funded benefits to spouses of government employees and I would not care at all who call themselves “married”. We have free speech in this country. You can call yourself a flock of sparrows for all I care.

  20. All I know is, the next time K&S take on a despicable client, and defend it on the basis that, “That’s what lawyers do, it has nothing to do with our personal views.”, I’m free to sneer, and assume the contrary. Because they’ve just proven the contrary.

  21. According to Wonk’s article, the original contract prohibited every single King & Spaulding employee, including employees not involved in the case, from working against DOMA or publically opposing it. How could that possibly work in a big law firm, and how could King & Spaulding have agreed to such a contract in the first place? Can you imagine walking into an associate’s office and informing them that they’re not going to the Pride parade this year, and oh by the way they have to resign their position in the Gay & Lesbian Lawyers Association?

  22. @ Malcolm Kirkpatrick: What about concealed carry weapon licenses? Must New York bow to Arizona’s rules? What rights or privileges that one State confers must other States acknowledge? That is the issue. I really would not care one way or the other if all that was at stake was a word. However, marriage confers access to a partner’s employer-funded health insurance, and governments employ millions of people. There’s a potentially large financial liability at issue with a redefinition of “marriage”.

    I don’t see any equivalence between the state sanctioned institution of marriage and concealed carry weapon licensing; once you cross the border from one state to another the local laws of the jurisdiction in which you are present apply with respect to actions occurring wholly within that jurisdiction. In the case of marriage however, you are referring to a legal status that carries with it a whole host of rights and obligations (some public and others wholly private) that are quite difficult to replicate contractually, if at all. By permitting some states to ignore marriages lawfully sanctioned in other states, parties married legally in some states are nonetheless obligated to address all those public and private rights and obligations that flow from their marital status any time they cross into another state, whether it be to have dinner, get medical care or permanently move.

    There is a financial component to all family status issues. But that is all the more reason that it is a constitutional issue to deny to some those financial benefits that are readily available to others based upon an invidious reason.

  23. Ok – all are equally deserving of the financial benefits of marriage, and it is a constitutional issue to deny those financial benefits to some while making them readily available to others – based on any reason or no reason at all.

  24. (Curious): “…all are equally deserving of the financial benefits of marriage…
    This is where supporters and opponents differ. I see marriage as an evolved custom that is older than formal law. The socially conferred material benefits of marriage reduce the cost to males of staying with females. This raises the probability that children, which were a likely result of regular sexual activity, will mature in a supportive environment. Society gains by the reduction of the problems which attend children raised without fathers. We make a big deal of marriage to keep males from skipping on their obligation to support their children.
    These benefits have a cost. Expansion of the definition of “marriage” to couples who are far less likely to have children and far more ar risk of an expensive and long-term medical condition will raise costs to society without the attendant benefit.

  25. @ Malcolm Kirkpatrick “Expansion of the definition of ‘marriage’ to couples who are far less likely to have children and far more ar risk of an expensive and long-term medical condition will raise costs to society without the attendant benefit.”

    This is where you and I differ at least. There is no obligation to have children in order to claim the benefits of marriage if you are a heterosexual couple but even where children are involved, your position makes marriage unavailable to the homosexual couple. This is to me untenable.

  26. (Curious): “There is no obligation to have children in order to claim the benefits of marriage if you are a heterosexual couple…

    True. Laws don’t have to be perfect and accommodate every situation with the same goodness of fit to be “good enough for government work”. Sometimes it’s okay to exceed the speed limit. Sometimes, probably, it’s legally required (someone is bleeding out in the back seat and to drive 25 mph would be murder).

    (Curious): “…but even where children are involved, your position makes marriage unavailable to the homosexual couple.
    ibid.

  27. “Expansion of the definition of “marriage” to couples who are far less likely to have children and far more ar risk of an expensive and long-term medical condition will raise costs to society without the attendant benefit.”

    I fully agree. No woman over the age of 50 and no man over the age of 70 should be permitted to be married. There is no social benefit whatsoever to companionate marriage and these leaches on employer-provided health care and Social Security survivors’ benefits should be cut off from normal human relationships.

  28. Bloix,
    Feel better? I hope so. Your wild misrepresentation adds nothing to the discussion.
    (Malcolm): “Expansion of the definition of “marriage” to couples who are far less likely to have children and far more ar risk of an expensive and long-term medical condition will raise costs to society without the attendant benefit.
    (Bloix): (sarc.on)”I fully agree. No woman over the age of 50 and no man over the age of 70 should be permitted to be married.“(sarc.off)
    As I noted above:…
    (Malcolm): “Laws don’t have to be perfect and accommodate every situation with the same goodness of fit to be ‘good enough for government work’.
    It’s a simple point that you can apply to most of the special circumstances you might invent. As to:…

    (Bloix): (sarc.on)”There is no social benefit whatsoever to companionate marriage…“(sarc.off)
    Strawman, and I expect you know it. There are tons of social benefits. There is no good argument for subsidy to attain these benefits, since people have sufficient incentive to maintain compassionate relationships without subsidy. A beautiful woman walking down the street, radiating beauty, is as much a “public good” as is a lighthouse (she brings a twinkle to the eyes of this old man, anyway). No subsidy required in her case as she has sufficient incentive to generate this good (young men will compete to take her to dinner and the theater). We all benefit when the people around us have friends; loners arm themselves and shoot up malls. Friends provide sufficient individual benefit that we don’t need a government agency to subsidize it.

    (Bloix): “…these leaches on employer-provided health care and Social Security survivors’ benefits should be cut off from normal human relationships.
    How ’bout we repeal legally mandated employer-funded health care and let people buy their own health plans? How ’bout we get the State out of the entitlement business and let people invest as they see fit? And no one is talking about “cut(ting people) off from normal human relationships”. The State does not subsidize my chess circle or my other friendships.

    What’s at issue is State-mandated employer-funded health care and tax-exempt inheritance. Repeal the mandate that employers offer health insurance plans (and require that the State pay its employees in cash) and abolish estate and inheritance taxes and there would not be enough of an issue to make for an entertaining dispute.

    “When someone says ‘it’s not the money, it’s the principle’, it’s the money.”

  29. Actually what is at issue is the constitutional right to equal protection of the law, and the constitutional obligation for each state to give full faith and credit to the laws of the other 49 states as to matters of personal status within their borders.

    Just because something has a financial impact doesn’t make it constitutional.

    Its interesting that you started with the financial impact, then when challenged on the constitutionality you changed course and posited that marriage is “an evolved custom that is older than formal law” as if that justified anything, and then returned to the financial impact. It hardly matters one way or another it, it is clear that we differ.

    However as to your view that the privilege of marriage is one on which one state should not be able to impose its views on other states, well that is always the case with personal status matters. But I fail to see how it helps the cause of federalism or is truly even a tenable position that people married in one state for all purposes should be allowed to void the marriage simply by going to another state. Instead wouldn’t it be far better to recognize (and as would be the case under standard choice of law principles) the law of the state where the marriage was contracted as governing the marriage for the duration of its existence and/or any dissolution?

  30. (Curious): “Its interesting that you started with the financial impact, then when challenged on the constitutionality you changed course and posited that marriage is “an evolved custom that is older than formal law” as if that justified anything, and then returned to the financial impact.

    Flat false,

    The first sentence of my first comment dealt with constitutionality. After “How does defense of traditional marriage qualify as ‘the right of bigots to make life miserable for gay people?”, the second declarative sentence (before any challenge) addressed financial considerations. As to: “…you changed course and posited that marriage is ‘an evolved custom that is older than formal law’ as if that justified anything“, there is no change of course; I address:…

    (Curious): “…all are equally deserving of the financial benefits of marriage…”…

    …that is, the notions of “equally” and “deserving”. Do you mean to suggest that these notions are divinely inspired? Equality before the law is indeed an important idea. It imposes a restriction on political authorities and so prevents favoritism (e.g., ObamaCare waivers, race-based exemptions from prosecution for vote fraud and voter intimidation). What it means in practice, and how it relates to the Federal principle, have to be worked out. “What works?” is an empirical question which only an experiment (e.g., a federal system) can answer.

    I do not accept that “all” are “equally deserving” of access to my bank balance.

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