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.”