The University of Chicago Law School Faculty Blog

Paul Clement, DOMA, and the role of lawyers for unpopular causes

Paul Clement is universally regarded as one of the nation's smartest, most experienced, and most effective Supreme Court and appellate lawyers.  He catapulted into the first tier of that group through his service from 2005-08 as Solicitor General in the Bush administration.  I once heard John Paul Stevens, then still a sitting Supreme Court justice (and one who frequently voted against the Bush administration's legal positions), praise Clement at a bar association dinner as one of the best SG's who had ever served.

Clement made news earlier this month when he signed on to represent the House of Representatives in defending the federal Defense of Marriage Act (DOMA) against several court challenges.  DOMA bars federal recognition of same-sex marriages, and the Obama administration, which normally would be charged with defending an act of Congress, has concluded that DOMA is unconstitutional.  (I have previously written about that development here.)

Today, Clement made news again when his law firm King & Spalding, under pressure from gay-rights and other progressive groups and commentators, asked to withdraw from its defense of DOMA, and Clement then resigned in protest of his firm's decision.

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. 

I don't know Clement well; we've talked professionally on a couple of occasions, and I had the experience of litigating and arguing against him in a Supreme Court case two years ago.  In that case, my firm represented a county government that was being sued by two men who claimed they had been the victims of misconduct by county prosecutors, resulting in alleged wrongful convictions and imprisonment.  Clement represented the plaintiffs pro bono at the Supreme Court.  The case settled before decision, and the plaintiffs received $12 million.

I have no first-hand information about how Clement got involved in that case.  My best guess is that he took it not because he is inherently skeptical of prosecutors and government power (his legal career and political credentials suggest otherwise) but because it was a high-profile case involving interesting, unresolved questions of law.  It is not uncommon for law firms that specialize in Supreme Court practice to take cases pro bono or for reduced rates as a way of maintaining name recognition and stature in that small and competitive niche of legal practice.  (Several prominent Supreme Court practitioners wrote amicus briefs pro bono supporting our client's position in the matter I argued against Clement.)

Similarly, I have no first-hand information about Clement's decision to take on the defense of DOMA (for which King & Spalding was going to get paid, albeit at a reduced rate).  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. 

In a partnership like K&S, a partner of Clement's stature ordinarily has a great deal of latitude over the matters and clients he chooses to accept.  Although apparently that process somehow broke down in this instance, my guess is that Clement -- who would naturally gravitate to a high-risk, high-profile case, and who has vast experience defending Republican policies before federal courts -- took the DOMA cases for their professional and intellectual challenges and rewards, not because he is some sort of right-wing true believer.  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.

In the end, whether DOMA is held unconstitutional likely will have more to do with the ideological dispositions of the judges who decide these cases, not the lawyers who argue them.  In the meantime, I'm inclined to think the Los Angeles Times was correct when it editorialized last week that

the suggestion that it’s shameful for Clement or his firm to do so misunderstands the adversarial process. For one thing, with sharp-witted counsel on both sides making the strongest possible arguments, it is more likely that justice will be done. For another, a lawyer who defends an individual or a law, no matter how unpopular or distasteful, helps ensure that the outcome is viewed as fair. If DOMA is struck down, the fact that it was defended effectively will make the victory for its opponents more credible.

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.”

Steve Sanders

 

Student Blogger - Crime, Inequality, and Federalism

For several decades there was a strong and vibrant civil rights movement in the United States. On many fronts this political and social movement was extremely successful. In the 1940s and 50s the Supreme Court reversed decades-old precedents upholding racial segregation. In the 1960s Congress passed powerful civil rights legislation. From the 1940s through the 1960s various Presidents moved decisively in support of equality. Truman desegregated the armed forces, Eisenhower sent the 101st Airborne to Little Rock, and LBJ pushed civil rights and voting rights legislation through Congress, to name but a few examples. But by the end of the 1970s the civil rights agenda had largely run its course in national politics. What happened to this political movement and why are its concerns largely absent in national politics today? Evidence of racial inequality is ubiquitous, especially with regard to crime and punishment, so why is there a lack of national political movement on these issues today? These questions provided the impetus for Professor Lisa L. Miller’s recent research regarding congressional attention to crime, justice, and inequality. Professor Miller argues that the decision to adopt a federalist system (a centralized national government with limited but preemptive powers combined with state governments possessing general legislative power) has stymied progress on issues of social justice and inequality. Specifically, Professor Miller argues that the existence of multiple legislative venues Balkanizes groups that would be allies on a national stage.

Professor Miller examined congressional hearings on crime between 1971 and 2000 in order to determine what crime-related topics lawmakers were addressing and what kinds of witnesses they were hearing from. Hearings were divided into the following categories: police/guns/prisons, drugs, juveniles, riots, white collar, and crimes against women and children. Unsurprisingly, Congress spent a great deal of attention focusing on police and prisons during the tumultuous 1970s, and in the 1980s congressional attention switched to drugs. In this regard, Congressional attention to criminal issues roughly tracked the news cycle. In the 1970s civil protests and prison riots drew widespread attention and in the 1980s the threat posed by illegal drugs came to the fore. Professor Miller argues that Congress’s relatively short attention span on these issues prevents meaningful action to address inequality and inequities relating to crime and punishment in the United States. These inequalities aren’t hard to miss—at every point in the criminal justice system Blacks and Latinos are substantially over-represented relative to their proportion of the population.

Turning to the question of who lawmakers are hearing from, Professor Miller divided witnesses at congressional hearings into the following categories: government representatives, professional groups, citizen groups, and other/unknown groups. The vast majority of witnesses at congressional hearings are representatives from criminal justice agencies and other government witnesses. Notably absent are those who have experienced drug crime or drug addiction first hand. By comparison, Professor Miller looked at city council meetings in Philadelphia and Pittsburgh from 1997 to 2006. Citizen groups representing broad concerns, virtually absent in congressional hearings, appeared frequently at the local level. These citizen groups were able to connect crime and punishment to the challenge of improving neighborhood conditions and quality of life.

What are we to make of this contrast between local and national politics on criminal justice issues? In rough terms, the police show up in Congress and community groups show up at city hall. This would be fine except for the fact that local governments are basically powerless to fix the problems Professor Miller highlights. In other words, Congress has the money and clout needed to address systemic inequality but city governments do not. Professor Miller says that groups across the country that would be natural allies for a fight in Congress instead are spending their energy in local government, when really Congress is the political body that can best address the systemic problems about which they are concerned.

Professor Abebe pointed to an interesting and unaddressed question by asking how we should measure improvement on the issues that Professor Miller is raising. Professor Miller is concerned about inequality—the unequal distribution of money, punishment, education, opportunity, and most importantly political representation. The distribution of many of these things is certainly lopsided. But we need to know what “equality” is before we can determine the significance of the lack of community groups in congressional hearings. Miller thinks there should be more input from citizen groups who can connect criminal policy to broader social concerns, but how much more is not clear. Professor Miller’s starting point is noting how the criminal justice system is hugely unequal in terms of outcomes. But simply noting this inequality doesn’t tell us how often Congress should be hearing from citizen groups who can describe first hand the impact of federal criminal policy. And, perhaps more significantly, without a definition of equality we can’t tell when Congress is making progress towards addressing the unequal distribution of criminal punishment.

By comparing the political process at various levels of government on one issue, criminal justice, Professor Miller’s paper is the start of an interesting conversation regarding how various political institutions can amplify certain voices while muting others. It seems at first blush that institutional arrangements are only one part of the story. In the 1940s, 50s, and 60s American government functioned in roughly the same way that it functions today. Yet groups advocating for civil rights, social justice, and related issues were successful in pushing their agenda at the national level during those decades. Turning back to the question that motivated Professor Miller’s research, it seems to me that American federalism by itself can’t by itself have caused the decline of the civil rights agenda on the national political stage. Political institutions shape policy outcomes, but the civil rights movement happened in a federalist system.

Despite the surface appeal of this narrative, Professor Miller argues that national majorities can only overcome the limitations of federalism only when there are massive social upheavals (Vietnam, civil disobedience, etc) to sustain social movements advocating in favor of change. In other words, Professor Miller argues that the civil rights movement was successful in spite of the limitations of American federalism. This of course begs a more challenging and troubling question: why stark inequalities in the distribution of crime and punishment along racial lines fail to attract the kind of attention that has motivated Congress to act in the past.