What is an Attorney General to do?

So Brad Schimel is being criticized for saying that he would have felt it his duty to defend bans on interracial marriage in the 1950s.  I would not have answered the question the same way but the attacks reflect a misunderstanding of the law and the office that Schimel is running for. To his credit, he understands both. Here is what you need to know.

First, he was not asked if he would defend a ban on interracial marriage today. He certainly would not. Such a ban was declared to be unconstitutional in 1967. No legislature would pass it today and no competent lawyer would defend it. Indeed, virtually every lawyer under the age of 72 was trained after this issue was resolved. Thus, if you hear attacks on Schimel that say he "wants" to "go back" to the 1950s, they are either demagogic distortions or based in a misunderstanding of the question.

Second, the role of the Attorney General is not to defend only those laws that he or she disagrees with. It is not to act as a judge who weighs the arguments and decides which of them are right. His or her job is to defend the state as long as one can make a colorable legal argument in its favor.

So the question that was put to Stimuli was effectively this. Even though we all know that there is no colorable argument that a ban on interracial marriage is constitutional from any time between 1967 and today, what would you have done had you been asked to defend such a ban in the 1950s?

The easy thing would have been to say he would not have defended it. but Schimel - who certainly doesn't oppose interracial marriage - took the question seriously. He did so because he has criticized Susan Happ - who has essentially said that she won't defend any law that she thinks should be struck down - for failing to understand what the state's lawyer is supposed to do.

So what should Schimel have done in the 1950s?

In answering that question, his personal feelings - either as they actually exist in 2014 or as one imagines they might have existed in 1954 - are irrelevant. If he had been the AG in 1954 and asked to defend a ban on interracial marriage, he would have had to survey the law at the time and see if the state's position in favor of a ban was clearly unconstitutional. He would have found no Supreme Court decision holding that a ban on interracial marriage was unconstitutional. Unfortunately, he would have found an 1883 decision holding that it was not. So he would have had to decide whether he could make an argument that case should be overturned.

Maybe he would have concluded that he could. Maybe he would have decided, for example, that the decision in Brown v. Board of Education ended the doctrine of separate but equal in areas other than public schooling. Ironically, he might have been impeded in so concluding by the way in which then Chief Justice Warren wrote Brown. Warren, wrongly in my view, seemed to base his decision on social science evidence regarding the psychological impact of school segregation rather than a far more robust rule of no racial decision-making ever. (The problem, you can see, is that you risk losing your principle of racial equality if the psychological evidence turns out to be wrong or inapplicable in particular context.)

 As a constitutional lawyer, I might have said that I would have relied on Brown to argue that existing precedent should be overturned. If I wanted to be more careful, I might have refused to enter the way back machine and say what I would have done had I been born in 1906 instead of 1956.

As a prosecutor, Schimel answered the question by resort to the default position. He would have to defend the state's laws. This is mostly true. Whether it actually would have been true in 1954, would require an analysis that Schimel has not had an opportunity to make. His instincts were consistent with the nature of the job he is running for. His answer says nothing about his attitude toward race. It does say something about how he views the law and the job that he is seeking. And what it says about that actually reflects well on him.

Cross posted at Purple Wisconsin.