Wednesday, April 27, 2011

Assault on the Rule of Law

I thought, for a while, about whether the title of this post was a bit too extreme. My subject is the pressure placed on King & Spalding to drop its representation of the House of Representatives with respect of the Defense of Marriage Act. Gay and lesbian activists pressured the firm in much the same way that the left pressured the local firm of Whyte & Hirshboeck when one of its associates served as local counsel on an amicus brief opposing a procedural challenge to the enactment of the Wisconsin Marriage Amendment.

Unfortunately, it's not too extreme. What happened here is shameful. In succumbing to this pressure, King & Spalding disgraced itself and harmed the profession. In choosing to pressure a law firm for the clients it keeps, the left has taken one more step from the rule of law, civility and an ethos of mutual respect.

There are good reasons to be careful about boycotting or pressuring lawyers for representing unpopular clients. The rule of law applies to the unpopular - even the despised - and one cannot enjoy the protection of the law without a lawyer to secure it.

That's why the title of this post is not extreme.

15 comments:

Todd said...

King & Spalding read the tea leaves and made a business decision. Those who defended DOMA now will be widely scorned by the majority of the country -- a majority that now supports marriage equality. Why would any mainstream law firm want to touch that with a ten foot pole?

This wasn't about the 3% of the country that identifies as lesbian or gay (or the less than .01% that might call themselves "gay and lesbian activists"). It's about the greater than 50% of the country that opposes unjust discrimination.

(It was also about the ridiculous gag order placed on all K&S lawyers.)

This has nothing to do with the rule of law. DOMA will get its defense.

Rick Esenberg said...

Todd

That's not an adequate response. Even assuming your predicate (which is, I think, wrong if actual election results are any indication), lawyers often represent unpopular clients. A majority of the country scorns terrorists yet I think it would be equally improper to pressure K & S for representing Gitmo detainees.

Or would you defend that as well?

Jim C. said...
This comment has been removed by the author.
Anonymous said...

Intimidation and bully tactics like this by anyone must always be opposed at any level.

How is it any different then the Syrian (dictator) government shooting innocent people for simply saying they want freedom in their country?

Good post.

Nick said...

I'm not sure whether I like your title "Assault on the Rule of Law"... but more because in general, I don't think this is a major assault compared to others. Any time we create a legal framework (ObamaCare, a local planning commission, etc) where the rules are not clearly written, and are instead judged on a case by case basis by the whims of an appointed or elected few is a worse Assault on the Rule of Law. Whether this quite qualifies... I see your point... but because I don't agree with DOMA... I find it sketchier.

I definitely do not like your comparison to representing Gitmo detainees. On the surface, it seems like a good comparison, but quickly breaks down.

Most importantly, individuals are innocent until proven guilty, and have a Constitutional right to be tried in a court of law. When you argue that "even unpopular clients should be defended"... its because there are people out there who are presuming guilt instead of innocence, and so don't see the point of the trial.

DOMA, however, is not a person. It is a law, and one that I believe violates the constitution. However, even if you disagree with whether its unconstitutional, a law has no right to trial, because it has no freedom to lose. You can argue whether it should be defended in court, but there is not obligation to do so, as there is an obligation to defend a person.

LawGirl said...

Nick said: DOMA, however, is not a person. It is a law, and one that I believe violates the constitution. However, even if you disagree with whether its unconstitutional, a law has no right to trial, because it has no freedom to lose. You can argue whether it should be defended in court, but there is not obligation to do so, as there is an obligation to defend a person.

Ah, but as a law, it has the "right" to a presumption of being constitutional, which seriously abrogates the distinction you attempt to draw here.

I think it is shameful - an an assault on the rule of law - for outside groups to bring political pressure against law firms defending a person, legal entity, or law.

Rick's post points to a particularly egregious example of this attempt in out own state by OneWisconsin Now to pressure a well-respected local law firm through bully tactics not to zealously advocate for its client in an amicus regarding a procedural challenge to a constitutional amendment regarding the same issue. Rather than leave results to the courts, informed by the best arguments from all sides (you might recognize that as the heart of our adversary system), they sought to short-circuit the process by removing a strong advocate for the "other" side. That smacks of fear and manipulation of the process.

I think the problem of politicization of judicial decision making is getting worse, evidenced by Sumi and the recent Wisconsin Supreme Court race. I see these and other current events as harbingers of a post-rule-of-law world, which is quite disturbing.

George Mitchell said...

LawGirl is right. The serious issue here is the determined effort, mainly by the left to politicize the courts and the legal process.

Nick said...

Though you miss one point LawGirl. What Obama has done in particular is not signal that he won't enforce the law, thus it is still presumed Constitutional. He has just said that he won't defend it because he doesn't believe it is.

This also brings up an important point, that the President swears an Oath to defend the Constitution. Personally, I'd like to see this happen more often, and Presidents choose to veto laws that they view as unconstitutional.

And once again, the consequences to a law being found unconstitutional without a defense are minor compared to the individual consequences of a person being thrown in jail without a defense or right to trial.

Anonymous said...

One man's bully tactics are another's freedom of speech. Some of the loudest champions of DOMA were incapable of holding their own marriages together....should the opinions of marriage covenant breakers influence this discussion?

Anonymous said...

Lawgirl said a law has the "right" to a presumption of being constitutional.

A taking without just compensation enjoys that presumption? A law abridging the freedom of speech?

John McAdams said...

Though you miss one point LawGirl. What Obama has done in particular is not signal that he won't enforce the law, thus it is still presumed Constitutional. He has just said that he won't defend it because he doesn't believe it is.

What the Obama administration did isn't the point of this thread.

The House of Representatives has chosen to defend the law -- a law the House passed.

Nick, I know you favor gay marriage, but you seem to be like other libertarians I know who favor judicial activism so long as it gets you the policies you want.

But the rule of law is a necessary condition for a free society.

You can't attack that and expect freedom to prevail.

LawGirl said...

Anonymous 7:07 -it's a rebuttable presumption, but a presumption nonetheless. It's a well-known canon of statutory construction.

Nick, the defend/enforce distinction lacks merit because, if he doesn't defend it, an activist court could be sure there's nothing left to enforce.

The presumptions seem to all get inverted when it comes to this one sensitive issue, including the presumption of constitutionality and the presumption that those trying to change a long- and widely-held definition are the ones who bear he burden of proving it needs changing, rather than presuming those seeking to retain it must show that it is not somehow discriminatory.

DOMA is not a change -the concept of gay "marriage" is. The attempt to co-opt that word, eschewing other forms of partnership providing the same civil protections, is the heart of many people's dispute with the gay lobby on this. They'd win more of us over if they were simply trying to secure the rights of marriage without trying to co-opt the term that has always been widely used in our country to mean one man/one woman.

sean s. said...

I have hesitated to comment on this topic here because it is paradoxical. Clearly it is a bad thing to economically punish law firms that represent “unpopular clients” but such bad behavior can happen even among those who are in the right. DOMA is unjust, and those who oppose it are in the right, even if they lapse into bad behavior.

Much has been written about the importance of the rule of law, and the integrity of the legal process; but for gays and lesbians, the law and the legal process has often been used as a cudgel to inflict injustice on them (such as: DOMA itself). It is irrational to allow the law to be used as a weapon to inflict injustice on people and then expect those people to revere the Law. The people who legally leaned on K&S (however much we dislike it, it was legal) are the very people DOMA is intended to harm. Outrage at their behavior is somewhat comical when the law was used to harm them beforehand.

Bottom line: the Law and the legal system will get no more reverence that they earn. If the Law is used to hurt, it is not a surprise that others will hurt it. It is unfortunate, but also unsurprising.

sean s.

sean s. said...

I don't think the title is too extreme, Matthew J. Franck has a post on Public Discourse with a very similar title: "Same-Sex Marriage and the Assault on Institutional Integrity".

http://www.thepublicdiscourse.com/2011/04/3213

Yours is dated two days prior to Franck, so maybe he borrowed your theme; or not. Sometimes themes just suggest themselves.

But I stand by my earlier comments: when the Law becomes a tool of oppression, the oppressed cannot be expected to revere the Law; even if they should.

sean s.

Anonymous said...

Geez, the House of Representatives is not an "unpopular client," any more than the State of South Carolina was when John W. Davis represented it in Brown v. Board of Education and companion cases. Was Davis, Polk & Wardwell more noble for having represented a state that was seeking to perpetuate racial segregation as the law of the land? Or would it have been more noble for Davis to tell South Carolina officials, segregation is vile, and I'm not going to help your efforts to continue to enforce this law?

There is a difference between representing unpopular clients against the strong hand of the state, and representing Government seeking to enforce an unjust law. There is some inherent nobility in the former. I'm not so sure there is in the latter.