Re: Red Herrings

by Ed Whelan

Some follow-up to my post last week explaining that Virginia attorney general Mark Herring has no plausible basis for his failure to defend his state’s marriage laws:

1. In preparing an article on the matter for the Weekly Standard (to be published in the next issue), I consulted with liberal law professor, and legal ethics expert, Stephen Gillers on a state attorney general’s ethical duties. Professor Gillers has kindly authorized me to state that he generally agrees with the following paragraphs (which, in slightly truncated form, appear in my Weekly Standard article):

Under well-settled principles of the American adversary system, a lawyer is ethically obligated to represent his client’s legal position zealously in court. That means, among other things, that if there are non-frivolous arguments that can be advanced in support of a client’s position, the lawyer should advocate that position when the lawyer determines that it is in the client’s strategic interest to do so. Under narrow circumstances, a lawyer may withdraw from representing a client in a matter. But he may never fail to advocate a defensible position that is in the client’s interest to assert simply because he personally believes it to be legally incorrect.

By virtue of his office, a state attorney general is the top lawyer for his client, the state. Except as to laws still on the books that are clearly invalid under existing judicial rulings, the only sensible legal position to impute to the state is that its laws—the provisions of the state constitution and the statutes consistent with those provisions—are valid and enforceable. The attorney general’s obligations as a lawyer therefore require him to vigorously defend any of those laws against challenge under federal law so long as there are reasonable (i.e., non-frivolous) grounds for doing so. If, however, for reasons of conscience the attorney general cannot do so in a particular case, a subordinate should be assigned.

2. With its usual obtuseness, Media Matters takes issue with my conclusion that Herring has violated his duties. Media Matters fails to grasp the underlying basis for the state attorney general’s duties and fails to confront (or even link to) my arguments disposing of the supposed precedents it invokes. Much like the inane Washington Post editorial, Media Matters seems to think that the fact that some lower courts are striking down marriage laws somehow excuses Herring from doing his duty.