April 27, 2011 | National Review Online
Al-Qaeda, Yes; DOMA, No
The modern-day John Adams brigade down at King & Spalding has finally found a client too unpopular to merit representation: the American people. That is exactly the same conclusion drawn by Eric Holder’s Justice Department.
Like the DOJ, the Atlanta-based white-shoe law firm asks “How high?” when left-wing agitators tell it to jump. In this instance, the agitators were gay-rights activists. They were in a snit because K&S — in particular, K&S partner Paul Clement, the former Bush-administration solicitor general — agreed to represent the American people in litigation involving challenges to the Defense of Marriage Act (DOMA). DOMA denies federal recognition of same-sex marriage. It was reluctantly signed by President Clinton in the stretch run of his 1996 reelection campaign, huge congressional majorities having acted out of concern that leftist judges would impose gay marriage on a very unwilling public.
Defending DOMA against court challenges is supposed to be the Justice Department’s job. As Attorney General Holder has declared, DOJ has “a longstanding practice of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense.” But with Holder in charge, that claim is fraudulent.
Under Holder’s stewardship, duly enacted statutes are deemed infirm when the Left disapproves of them — despite powerful constitutional arguments to be made in their behalf. When Holder was Clinton’s deputy attorney general, DOJ refused to defend a congressional statute that had reversed the Miranda decision. There were well-grounded arguments in the statute’s favor — the Supreme Court had many times denied that its judicially manufactured Miranda rule had constitutional pedigree, and it is black-letter law that Congress may reverse judicial decisions not rooted in the Constitution. But no matter. For the Left, Miranda is a sacred cow, a cornerstone of its criminal-rights revolution of the 1960s and 1970s. To protect it, Holder’s minions abandoned the statute — taking the side of a convicted bank robber to do so.
That was preferable to Holder’s diabolical approach to DOMA. For a long time, DOJ pretended to defend DOMA but sabotaged cases by abandoning the arguments that best supported the statute. Politics put an end to that charade. The president is unpopular and needs his base energized if he is to have a chance at re-election. He could no longer afford to be seen by the Left as being on the wrong side of gay marriage — even as a sham. So Holder dutifully pulled the plug on DOMA. Ever incoherent, the attorney general also announced that the administration would continue enforcing the statute it claims is clearly unconstitutional.
DOMA was thus defenseless, even though it is a popular law enacted by the people’s representatives. The Republican-controlled House of Representatives tried to retain counsel to do the job DOJ refused to do. That’s no easy task: The Lawyer Left’s mission in life is to eradicate our principles under the guise of upholding “our values” (by which it means its own agenda), and it has no more use for the people’s attachment to traditional marriage than it does for the people themselves. Enter King & Spalding, at least briefly.
Paul Clement is a brilliant lawyer. Putting two and two together, gay-rights groups realized they would face one of the nation’s most polished appellate advocates, one who would effectively employ all the compelling DOMA arguments the Obama Justice Department had been burying in the sand. Predictably, they went postal on K&S, threatening a boycott of their clients. The firm folded like a cheap tent, abandoning the representation while muttering some gibberish about how the “vetting process” had failed.
Clearly, K&S had not taken the measure of Mr. Clement, who is of the old school, in which lawyers were taught not to abandon clients they’d agreed to help just because the heat gets turned up. Upon hearing of his firm’s decision, he promptly resigned from K&S and announced that he is keeping the case. In a nice touch — and one that signals the long day the gay-rights lawyers are in for when they tangle with him — Clement closed his letter by shaming the Chicken Littles with the words of a K&S eminence, the late 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.”
Judge Bell, of course, was a U.S. attorney general, but his words have no more resonance at today’s Justice Department than at his former firm.
Which brings us to the Obama DOJ’s al-Qaeda Seven. Can we finally agree that they really are the “al-Qaeda Seven,” just like lawyers who choose to represent mobsters are commonly called “mob lawyers”? Caterwauls cascaded down upon Liz Cheney, Bill Kristol, and Debra Burlingame several months back when their organization, Keep America Safe, had the temerity to apply the “al-Qaeda Seven” label to seven DOJ lawyers who volunteered their professional services to our enemies, gratis, to help them file lawsuits against the American people, challenging their detention as enemy combatants in their war against the United States.
How dare anyone suggest that volunteering to help the enemy during wartime might somehow intimate a teeny bit of sympathy for the enemy, carped Mr. Holder — having himself voluntarily filed an amicus brief on behalf of Jose Padilla, the “dirty bomber” sent to America by al-Qaeda to attempt a second wave of post-9/11 attacks. The case of Padilla (who has since been convicted in yet another terrorist plot) was just one of the many matters Holder’s firm, Covington & Burling, handled while devoting hundreds of pro bono hours to at least 17 terrorist enemy combatants.
Yes, pro bono publico: work that law firms do for free because it is supposedly for the public good. Of course, they don’t really do it for free — it is a redistribution of wealth from the paying clients to lucky indigents the firm chooses to help: social justice in action. It turns out that King & Spalding has a pro bono practice so thriving it has appointed a partner to handle it full time — a former member of the ACLU of Georgia’s advisory board, who oversees the firm’s work on issues such as “prisoner rights,” as the K&S website delicately puts it.
We learn from the website that K&S is especially proud of the work it does for convicted murderers on death row. And back in 2004, the firm also dove into the Supreme Court’s Medellin case, trying to reverse the murder convictions of Mexican gangsters — like the two who had carried out the brutal rape-murder of 14-year-old Jennifer Ertman and 16-year-old Elizabeth Pena — on the grounds that police had failed to notify the Mexican consulate of their arrests.
But here is the real feather in the K&S cap: In 2009, the firm brought aboard the husband-and-wife team of John Chandler and Beth Tanis, with the understanding that the couple would continue representing six enemy combatants to whom they had devoted thousands of pro bono hours since taking the cases in 2004 — because, as Mr. Chandler helpfully explains, “Guantanamo is as much a symbol of American torture as Abu Ghraib.” Chandler and Tanis had some trepidation about whether they’d be able to continue volunteering their time to the terrorists, but Ms. Tanis was relieved to find that “King & Spalding was very supportive” of their Guantanamo work.
What else would you expect? The high dudgeon about lawyers heroically taking on unpopular causes is malarkey. DOMA is unpopular only on the left — but that is enough to ensure that the lawyer Left won’t touch it. But terrorists, murderers, illegal aliens, animal-rights activists, and global-warming alarmists? Count them in.
Social justice is not about ensuring a fair process. It’s about achieving outcomes of which the Left approves, by any means necessary. You can tell what they’re for by what they volunteer to do and what they’re against by what they won’t go near. That’s not John Adams. It’s Barack Obama.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.