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Al-Qaeda, Yes; DOMA, No
The strange priorities of the Lawyer Left are on display.

By Andrew C. McCarthy


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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.

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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.

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COMMENTS   10

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Richard Dees
   04/27/11 08:27

The discussion of this case fails to draw a distinction between defending an idealogy and defending a criminal defendant. Lawyers of all stripes have a duty to defend the lowlifes of the world to ensure everyone's constitutional rights are defended. No single lawyer or small group of lawyers has the right to align an international law firm with a particular ideology. It's why the ACLU and similar organizations exist.

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   04/27/11 08:53

Another fine expose by Mr. McCarthy of the leftist influence that is alive and well in our country and, in particular, in the Obama administration. Our country wouldn't be in the place it is today if more Americans had paid attention to what was happening under their very noses. Unfortunately, busy with life and more amenable activities, too many Americans shortcut their news consumption by focusing on the misleading headlines and skipping the facts.

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   04/27/11 10:07

The left's selective understanding of John Adams' defense of the British in Boston is merely a talking point. Its purpose is to quell further discussion.

When lawyers manipulate the legal system to obtain results they know could not be achieved through the legislative process, the majesty of the law is permanently damaged.

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   04/27/11 10:43

If the distinction between defending an ideology versus defending a criminal defendant is a crucial part of the King & Spalding discussion, then it should be noted that ideology is the reason King & Spalding abandoned a client they agreed to represent. And just to be clear, American lawyers are under no ethical obligation to defend the "lowlifes of the world." They are obligated to provide pro bono services to indigent criminal defendants when requested by American courts to do so, but they are under no ethical obligation to volunteer thousands of hours of free services to file lawsuits on behalf of plaintiffs who appeal to their ideological (and political) preferences.

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Jonas Robinson
   04/27/11 11:04

I read all of Andrew's essays and this is my favorite in a long time. Completely destroys K&S and re-introduces Mr. Clement as someone of great integrity. Also, concisely exposes the hypocrisy running rampant on the left. Great job.

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   04/27/11 11:56

K & S didn't bow to external pressure from gay rights groups. They reversed their decision based on an internal struggle sparked by the House's contract that many of the firm's lawyers believed to be unreasonable and overreaching in its restrictions. The contact proposed to regulate the personal behavior the firm's 1000 (or so) employees, and many of those employees refused to accept that restriction.

Law firms often cherry pick clients for varied strategic reasons: conflicts, status, branding, etc. There is nothing at all unusual here.

That said, I do believe the Justice Department should continue to defend DOMA. Just because over half of Americans approve of gay marriage does not mean the laws already in place should be ignored by our government.

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   04/27/11 13:10

"The first thing we must do is kill all the lawyers." - except for Andy, that is.

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johncoleman
   04/27/11 14:15

tflavin: "Just because over half of Americans approve of gay marriage does not mean the laws already in place should be ignored by our government."
Fascinating claim there.
So tell me, how is it that every time it's put to a vote of the people, they vote against gay marriage?

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JayWye
   04/27/11 15:10

If one actually reads ALL of Article IV,section 1,the "Full Faith and Credit clause",it clearly gives Congress the power to decide what Acts,Records,and Proceedings of the states apply to all 50 states and US territories. In regards to DOMA,Congress did exactly that,and retained the millenia-long definition of "marriage" to be what it's always been;man-woman. The right to marry is STILL "equal",as any adult male straight or bent can marry any unrelated and adult woman straight or bent.That is the sole definition of "marriage",per Congress under their authority granted by Article IV,section 1 of the Constitution.
DOMA -is- Constitutional.

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   04/27/11 15:40

Johncoleman: See the PDF below for the poll I refer to (page 2).

I imagine it does not often pass at the ballot because people who oppose it are older and thus more likely to vote. Also, the distribution is not geographically consistent (i.e. clustered in urban areas).

Also, this recent support of gay marriage represents a dramatic cultural shift, the effects of which have yet to be fully realized. We'll have to give it a few years to see the real impact.

External Link 

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