We were really excited that the law firm of King & Spalding had backed out from defending DOMA, which is one of Boehner’s Bad Budgeting Ideas.
However we were less excited to hear that Paul Clement, the King & Spalding lawyer who had taken the case for $520-$900/hour (mixed reports), had decided that he’d rather quit his law firm then quit this fantastic new job defending DOMA.
Clement, who probably feels really famous and rich today, has written a cloyingly eloquent letter to defend his decision. I’m sure many will find this defense really sensible and lovely, but it makes me want to stick forks in my eyes and scream real loud:
My resignation is, of course, prompted by the firm’s decision to withdraw as counsel for the Bipartisan Legal Advisory Group of the Untied States House of Representatives in defense of Section III of the Defense of Marriage Act. To be clear, I take this step not because of strongly held views about this statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statues 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.
Okay, time out! “Extremely unpopular”? How about “supports legalized discrimination of US citizens”? Anyhow.
Defending unpopular decisions is what lawyers do. The adversary system of justice depends on it, especially in cases where passions run high.
That’s so weird, how passionate people become about how their tax dollars are spent!
Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or the wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.
You hear that Left Wing Media Gay Liberal Communist Mafia? Your HOSTILE defense of EQUALITY is not going to deter Paul Clement from defending DOMA because he is the only lawyer in the entire world. Everyone else is busy dealing with non-violent drug offenders.
I would have never undertaken this matter unless I beleived I had the full backing of the firm. I recognized from the outset that the 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.
Viet Dinh & Paul Clement
You can read the entire letter here. He goes on to break Rule #3 of Lesbian Fight Club while simultaneously name-dropping a former partner of the firm and then announce that he’s got a new job with Bancroft PLLC, a firm with deep ties to the GOP. Isn’t it funny that even though Clement doesn’t necessarily have any affection for DOMA, he’s chosen to go with a firm so consistently affiliated with conservative politics?
In The LA Times, Maya Rupert addresses the fallacies in this argument (although she wrote it in argument to another LA Times editorial, not to Clement’s letter):
The Times takes the curious step of extending the familiar maxim that “every person deserves a lawyer” to the more expansive “every position deserves a lawyer.” The first is a fundamental right upon which we base our criminal justice system. The other is a fiction that mistakenly seeks to insulate a shortsighted law firm from criticism for its decision to defend a discriminatory law. . . .
Civil liberties organizations, for example, have repeatedly, and admirably, defended plaintiffs whose views they abhor (such as members of the Ku Klux Klan), in order to protect cherished principles like freedom of speech and assembly. In this case, there is no greater good, no cherished larger issue at stake; the only issue contested is discrimination. There is no venerable tradition of lawyers defending laws that single out certain groups for discrimination….
A private lawyer is under no obligation — from a state bar, pursuant to ethical rules, or out of respect for the adversarial process — to defend an indefensible law. Those who choose to defend such a law do so at the peril of their reputations as fair-minded and just advocates. Clement has made a decision not just to stand on the wrong side of history but to lead the charge on that side . . . He is free to do so, but we should not pretend that decision represents a magnanimous fidelity to the adversarial process or to justice.
Bancroft PLLC, by the way, was founded by Viet D. Dinh, the “the chief architect of the USA PATRIOT Act,” and his firm has been involved in a lot of homeland security legislation. Dinh was Assistant Attorney General of the US from 2001 to 2003 under George W.Bush’s presidency. The Senate confirmed him 96-1 and that one No vote came form our girlfriend Hillary Clinton.
Need we say more? These are the people with the money and these are the things they do to earn and keep additional money.
I hope everyone makes lots of money and Paul Clement gets a really nice swimming pool, like this one:
pretty words for ugly truths.
Its all so obvs.
maya rupert from the la times is a hella eloquent lady, because in the face of this kind of idiocy i would seriously only be able to stutter in asterisks and exclamation points
when is the united states going to wake up and realize that all this gay marriage debate and planned parenthood funding issues and new york mosque week-long controversy and donald trump toupee shit is all noise, it’s all a diversion for the fact that mega corporations and seriously evil greedy guys are stealing all the money and all the nature and all the happiness out from everybody else’s noses
it makes me seriously sad to think about it.
Let’s make a comic book about it! The AS team members can be the superheroes.
When it’s made into a movie, america will realize and we can all make out in front of churches/court houses.
It’s a plan.
I want in! I don’t want to brag but I own several sharpie pens…so if you’re looking for someone to supply you with several (I think I have like 5?) ‘in-good-working-order’ sharpie pens I’m your gal.
You are definitely my gal. I do think we need a new character sketch for our main protagonist, though… I am obviously procrastinating heavily today.
Oh my G-osh! I actually got a ‘job’ (this is as close as I’ve ever gotten so don’t ruin it for me)I’ll fed-ex those pens to you ‘write’ away (my mind insisted I wrote it like that)
P.S. I’d like Donald Trump to be featured in this.
P.P.S Holy crow are you ever good at drawing, I may stalk you on tumblr from now on. Seriously wow.
It’s like it’s half-way done already!
(And also, thank you! Please do.)
Oh god, that’s so true.
I try to avoid thinking about it too often, because it’s so fucking depressing. It also makes me angry to the point that I can’t formulate anything else constructive to say right now. I’m just gonna go with @Paper‘s comic book idea.
^ I agree with this 100%!!!
I would like to nominate Paul Clement for a John Yoo Award for Asshat Lawyering.
Also, Maya Rupert’s article is righteous.
“That’s so weird, how passionate people become about how their tax dollars are spent!”
oh AS I love you! If I had a dollar for every time I’ve nearly snorted out my coffee while reading an AS article (simultaneously laughing at your hysterical wording and trying not to gag at the ridiculous things people do to the LGBTQ community)…well, I’d give all those dollars right back to you, because hey, you earned them! And I wouldn’t even charge you any taxes to fund lawyers that defend discrimination! That’s how deep my AS love runs.
1) I disagree with the DOMA
2) I abhor discrimination of the LGBT community
3) I agree with the premise Mr. Clement describes
4) I’m not a lawyer, not even close to anyone who is
Is it possible or perhaps likely Mr. Clement is using his arguments to cover his desire to discriminate against non-hetero couples? Yes.
However, I have to admit I find it offensive that you dismiss his arguments so casually. What he describes is very true, the legal system hinges on the ability of every legal participant, including ideas, to be represented competently. He presents that element fairly and properly, and for that I applaud him.
We don’t need you to ridicule valid arguments to see that he has a potentially convenient vehicle to project his alleged bias. If you’re going to do that you should at least be more respectful of the valid points and work a little harder to insulate those from your criticism of his position.
Without that you sound too much like the unthinking individual who wants to condemn a lawyer to providing legal council to a [insert unsavory criminal behavior here].
Please try harder next time.
I completely agree with you (although I think that last line was unnecessarily harsh).
I’ve got a friend who is a public defender. He’s defended felons in the Supreme Court! I also think he is an absolute badass because everyone deserves to have their side of the story heard, no matter how much I might disagree with it.
There is a big difference between defending individuals and defending discriminatory policy though. There is no defendant here! The only defendant is THE GOVERNMENT who has said they don’t believe it is a constitutional law. It is not the comparative situation that Clement is making it out to be.
But surely that’s the point – the US government is a party to the proceedings – so it is entitled to be legally represented.
Plus, isn’t it an entity created by the US Constitution, so an entity that can be legally represented in the same way that a corporation is?
I don’t agree with Paul Clement’s actions, but not because there is ‘no defendant’.
I had similar feelings until I saw the excerpt from the Maya Rupert article. She really nails it.
Paul Clement gets the rhetoric right – it is absolutely critical to have competent counsel even for unpopular defendants, even for a client the lawyer KNOWS is guilty. Major props to Dina’s friend and all the public defenders out there who do the job and do it well.
But as Rupert points out, a discriminatory law has no fundamental right to a lawyer. Every person who is charged with a crime, dragged into court, and who faces the loss of liberty or life has this right. Not every person who wishes to bring a law suit or who has been sued has a right to a lawyer. An idea being challenged, like here, does not have that right. A lawyer certainly may take on any case s/he wants to, but it’s ridiculous for Clement to wrap his decision up in all this talk about protecting the integrity of the legal system.
I don’t think he presents the issue “fairly and properly.” He’s co-opting the principle of right to counsel and hiding behind it so he doesn’t look like a) someone running after the money and fame; b) a bigot; c) a happy servant to the Republican party. Also d) a douchebag.
While I see your point here, I do still think the *people* who do believe these things have a right to be heard. I may disagree with them very heavily, but yeah.
Now, I do wonder how eloquent a defense of an obviously flawed law he’s going to be able to construct anyway…
I really doubt Clement would stick to his “principles” so strongly if he weren’t getting paid so fucking much on a high-profile case.
I had Viet Dinh teach me Constitutional Law I last semester (Con Law 1 in law schools is just the constitution and none of the amendments). There are… 14 queer people in our section. He called on us, talked to us, had drinks with a big group of us, talked to a friend of mine’s girlfriend for about 20 minutes at one point.
Then he’d laugh in class about how he didn’t care about people’s rights at all. He’s a brilliant man, a self aware one. He doesn’t hate gay people and want us to have no rights – he doesn’t really want anyone to have any rights.
That is… absolutely terrifying. Are we sure he’s not a robot? Or a “Visitor” or something equally spooky?
If he’s a robot, he got programmed with a really sick sense of humor.
It is terrifying because he’s very friendly and approachable – but then you know what he actually thinks and does.
That’s such an odd story. He doesn’t want anyone to have any rights? At least he doesn’t only hate gay people, I guess that’s a bonus.
Sidenote: do you like your law school? I won’t out which school you go to but I know where he teaches so I’m curious. 14 queer people in your section?! That’s a huge number. Please send those vibes my way….I’m going to the school that apparently just got named the most LGBT friendly law school. Think NOT Michigan due to the fact that they are bringing an anti-gay speaker for commencement.
Remember that Tennessee fire thing that happened last year? Where the firefighters wouldn’t put out the fire because the guy hadn’t paid his fire dues? He started a class off with laughing about that. It made me sick. I raised my hand and asked why we allow people to opt out of municipal services at all. He didn’t call on me much after that. He did call on a gay male friend of mine often, though.
I love my law school. Hah, thanks for not outing me, but I don’t think Dinh’s behavior is much of a secret (plus, he’s googleable). Our Outlaw is huge – I think we have 80/90 people in it? That includes a decent number of queer foreign LLMs. We had an active yearly DADT protest with huge banners all over the school, we had a DADT symposium this year, and Gibson Dunn hosts a dinner just for us every year. I sat at the same table as Ted Olson and talked to lawyers who argued in front of Judge Walker. Pretty amazing.
My section is the “gay section” but we’re also the outgoing section and the “hot” section, so I think they just put all the cool people in the same group and called it a day.
80 or 90 people is a lot. I don’t think my future school has that many but they do seem really active and it’s in a nice lesbian city so I am pumped about it. Gibson Dunn is so awesome about the homos, every time I meet someone from there they just can’t wait to tell me about GD’s diversity policies. I’m jealous that you’ve gotten to meet/probably talk to? Ted Olson, that’s legit! My undergrad happens to have an endowed chair from David Boies and his grandson is in my class, but I’ve never actually met the man…apparently he is a little busy.
Also, yay AS law school people! I love this website more everyday!
If you don’t mind outing your future law school, I’m really curious as to which got named the most LGBT-friendly. I’m a law student, too, and I second your “yay AS law school people!” But I have to add a “boo law school,” because it’s finals time.
I am going to be attending Penn in the fall. They call themselves the most LGBT friendly law school but I assume that’s rather subjective. Something about some newsweek article naming the entire Penn campus the friendliest so the law school just got tacked on I think. I am not yet a law student so it’s not finals time, and as I just got the “Yes” on my honors thesis about lesbians in sports I’m pretty excited to be technically done with college! Good luck with finals! Also, where do you go? We should have an AS law school meet up or something.
Congrats on finishing college!
I go to Lewis & Clark in Portland, OR, so it’ll be a little hard to meet… at least until next fall, when the National Lawyer’s Guild convention happens in Philly! If you aren’t familiar with them, the NLG is an amazing organization that does awesome progressive work. I don’t have any idea what the Penn chapter might be like, but I know the Philly chapter is doing some really cool work. You should look into it! I have met so many inspiring radical folks through NLG. It has really helped me keep a healthy perspective about society and the law, which can be hard to do in law school.
Are either of you guys going to the Lavender Law conference in LA this year? Tons of gay lawyers and law students in one place! It’d be cool to have an autostraddle contingent. There’s a big GULC (ooh, I outed myself, oopsie!) group going and so I am definitely going to be there.
Grats on Penn, I hear its a great place. I did get to talk to Ted Olson but he lost interest once I told him I was into bankruptcy law. It’s almost the opposite of appellate litigation.
Not sure if I’ll be able to make it, but I’ve love to! Have you been before?
I haven’t, but I’m really excited about it. I’m hoping that “Student member of the LGBT Bar Association” will give my resume the extra push it needs to get me a good job – plus I figure I’ll make lots of friends there.
I HATE IT when people pretend that law and the legal system are infallible higher powers that transcend human understanding. They were created by humans, guys!
oh, hi THIS.
the sound you’re hearing is me hitting my head on my desk repeatedly.
And I thought Canadian politics were all kinds of fucked right now.
This is just ridiculous.
I can’t believe he literally QUIT his job to support legalized discrimination. Guess Paul Clement was just following Mike Huckabee’s advice about giving up job security to fight the “gay agenda.”
http://develop.autostraddle.com/mike-huckabee-is-a-terrifying-possible-future-for-gay-people-gop-favorite-82864/
Dahlia Lithwick had a good article about this on Slate, but I still didn’t find her argument all that persuasive