Bench Memos

Inane WaPo Defense of Virginia AG Herring

In a house editorial today, the Washington Post get its premises right: It recognizes that “the instinct, tradition and expected practice of the government’s legal representatives must be to defend duly established laws against legal challenge, even those with which they personally disagree.” It further correctly observes: “Only when attorneys general are convinced that no reasonable argument could vindicate a law under challenge should they feel comfortable doing anything but aggressively defending enacted statute.”

These elementary propositions ought to lead readily to the conclusion that Mark Herring, Virginia’s new attorney general, violated the duty of his office in announcing that he wouldn’t defend Virginia’s marriage laws (and in taking the additional step of joining the plaintiffs challenging those laws). The question whether Virginia’s marriage laws violate the federal Constitution—or, rather, whether a Supreme Court majority will hold that they do—is unsettled, and there are plenty of reasonable arguments that an attorney charged with defending the state’s laws can responsibly make in their defense.

The Post doesn’t contend otherwise (even as it expresses its own blanket conclusion that the case for Virginia’s marriage laws is “logically flimsy”). Instead, it asserts merely that the justices of the Supreme Court “are well on their way to saying” (emphasis added) that marriage laws like Virginia’s—defining what nearly everyone understood until recently to be marriage, plain and simple—are unconstitutional. Perhaps so, but that’s just a backwards way of acknowledging that the question currently remains unresolved. So when the Post contends that the “worst that can be said of Mr. Herring and officials doing similar things in other states is that they are running ahead of the Supreme Court” (emphasis added), it’s simply camouflaging that that means, under the very propositions that the Post endorses, that they are violating their official duties.

In its brazen conclusion, the Post encourages Herring to “make clear that this is an extraordinary circumstance and that he will live up to the competence and professionalism that Virginians traditionally have expected of their leaders,” and it argues that “Republicans should tone down their outrage.” But Herring is rather like a newlywed husband who, on his honeymoon, tells his wife that he’s going to have a fling and that his vow of fidelity allows it. And the Post is the idiotic friend who tells the wife that it’s okay so long as he says he’ll be faithful to her in the future. I think it’s entirely fair for the wife to be outraged and to explore whether she has grounds for annulment or divorce.