Bil Browning

Logic Failure: Administration Supports Clement's Defense of DOMA

Filed By Bil Browning | April 27, 2011 5:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: anti-gay legislation, Attorney General, Defense of Marriage Act, Department of Justice, DOMA, Eric Holder, King & Spalding, Paul Clement

Only in Washington can logic get this twisted in an attempt to make everyone happy. Asked about the outcry over King & Spalding's hire to defend the Defense of Marriage Act and subsequent decision to drop the case, Attorney General Eric Holder told a group of reporters earlier this week that, "Paul Clement is a great lawyer and has done a lot of really great things for this nation. In taking on the representation - representing Congress in connection with DOMA, I think he is doing that which lawyers do when we're at our best. prd brain scanThat criticism, I think, was very misplaced."

"It was something we dealt with here in the Department of Justice," Holder said. "The people who criticized our people here at the Justice Department were wrong then, as are people who criticized Paul Clement for the representation that he's going to continue."

Asked about Holder's comments, White House Press Secretary Jay Carney told the Washington Blade, "We do share Eric Holder's views on this. We think - as we said from the beginning when we talked about - when I did from this podium - about the decision no longer from the administration to defend the Defense of Marriage Act, that we would support efforts by Congress if they so chose to defend it. And so I have nothing to add to the attorney general's comments."

Let's just look at the fucked up logic behind this whole thing for a moment.

First, defending DOMA isn't nearly the same as defending criminals. That's why we have two different types of law - civil and criminal. Everyone has the right to a defense in a criminal trial, but there are plenty of folks who want to sue someone civilly who never find a lawyer to take the case.

That's because lawyers are allowed to pick and choose the cases they'd like to take in civil litigation.

Several folks have tried to make the argument that lawyers should take cases that they disagree with because if the attorney is professional, they'll argue the case on the merits without regard to their own personal feelings. These people usually cite the ACLU defending the rights of the Ku Klux Klan to rally. While this comparison is at least in the same legal sphere, again it's not the same at all.

The ACLU was defending rights enumerated in our basic founding documents - the right to peacefully assemble and the right of free speech. The only people being denied equal treatment in the DOMA case are LGBT couples who are being treated differently than same-sex couples. This comparison would be more apt if Clement believed homosexuality was a sin and LGBT couples didn't deserve the right to marry, but argued against the Defense of Marriage Act. He's not defending an unpopular client against governmental intrusion into their basic human rights - he's defending the United States government's ability to intrude into LGBT people's basic human rights.

Second, stop and think about that comparison for a moment. Defending a law that Holder himself has found unconstitutional and discriminatory to American citizens is equal to defending supposed terrorists who have been incarcerated for years without a trial. One is a noble pursuit of justice and fairness. The other is seeking to deny equality to a select group of people. Either way it goes, the far right wins; they don't like gays or brown people.

Third, while the administration seems to lay the blame for King & Spalding dropping the case at the feet of the LGBT community, in actuality it had more to do with their current clients and employees. Where is the castigation of Coca Cola, one of the firm's biggest clients, or the firm's employees?

Partners and associates were upset with the extremely restrictive contract Clement signed on the firm's behalf which mandated that employees not working on the DOMA case were prohibited from advocating for the law's demise. Coke called on the firm privately to drop the case because they didn't want to associate with a law firm defending anti-gay discrimination. Other Fortune 500 companies represented by King & Spalding also made their displeasure well known.

This administration is assholelushious; they just can't resist stepping in shit and then putting their foot squarely in their mouth.

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The way these folks (the LA times, Andrew Sullivan, Eric Holder) talk about it one would think that if a defendant doesn't get a $900/hr lawyer then a massive injustice has been committed. Something tells me if the defendant weren't the US government and the lawyer weren't one of their cronies then they wouldn't being rending their garments on this one.

Or maybe they've all had a change of heart. The next time someone gets executed and only had access to court-appointed lawyers, I'm sure they'll be crying out about the injustice.

And, to clarify, I can accept the premise that all laws should be defended in court, but it almost seems like the Justice Department dropped this one because they wanted it defended well but they didn't want to take responsibility for the arguments being made. Their arguments were weak because they had to take the politics into account. Now a hired gun is free to go to town and present the arguments that Holder would have liked to have presented.

Stephen McLeod | April 27, 2011 5:52 PM

I sympathize. And before I say what I'm going to say, I want you to know that I agree with you. That said, I'm a lawyer, a prosecutor actually, so not a highly paid lawyer. But from day 1 in law school one is conditioned to find arguments, not truth. I became a prosecutor because I was troubled by this general assessment, and prosecutors, in theory at least, are supposed to seek truth and justice over mere verdicts. Still, over the twelve or so years I've been practicing, all my work has been geared toward analyzing legal issues for viable arguments. I am very grateful to work for a District Attorney who used to be a public defender, and who sees, even more clearly perhaps than I do, that justice is what we seek, unlike most in our profession. Still, the very best lawyers are the ones who can be impartial and who are able to divorce their feelings from the case they are arguing. I believe you very clearly addressed and criticized this point of view in your article, and believe it or not, I think your argument is better than my excuse. But, that said, I just wanted to point out that legal professionals don't analyze sets of facts the same way others do. It's habitual, and if it wasn't, we couldn't do our jobs. I've heard Mr. Clement in oral arguments before SCOTUS, and I have never agreed with the position he's taken, but I do think he is an extraordinarily talented lawyer, and having one's day in court is a principle that I believe is rooted in fundamental fairness. One thing more: Mr. Clement is NOT a "crony" of this administration. He was, arguably, a crony for Bush, but not for Obama. In ending, I want to emphasize that I agree; he didn't have to accept the work. I don't even think Congress has standing to challenge this. But he will make his argument and be paid for it because that's what we do. I apologize for any unintended slights to your arguments, which, as I said, I find very persuasive. I just wanted to add a little nuance. In the words of MoveOn:
Thanks for all you do,

Rick Sutton | April 28, 2011 8:19 AM

OK, I've sat idly by and watched the effed-up legal arguments that spew forth from this administration, whose election I supported from Day One--OH (over Hillary).

I've deferred to their higher-legal-judgment arguments. Time after time after time.

But this one is a bridge too far.

Riddle me this: why was the White House or the AG for that matter, bound to comment on ANYthing regarding this case? They could've been mum, and kept their high-fallutin legal minds to themselves.

In short, we did not need to hear the intellectual debates among highly-qualified Constitutional lawyers. This President seems to be going out of his way to piss in a fan.

Please, Mr. Obama: NO MORE idle wanderings through your brilliant mind. I'm just too dumb.

Bil, I'm going to disagree - but only if Boehner and his cronies are paying out of their own pockets for the defense. There is no justification whatsoever for taxpayer dollars to be used to provide this - and if taxpayer dollars are used improperly, Boehner and anyone else involved in the conversion of public funds should be remobed from office and convicted on federal charges (impeachment may not apply to members of congress).

In my analysis, DOMA is so clearly unconstitutional, that as long as Boehner and Co. are burning their own funds in the defense, and the matter is appropriately expedited in the courts, it'll keep them from spending it on something more damaging.

“I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages,” Illinois State Sen. Obama courageously stated in an answer to a 1996 "Outlines" newspaper question on marriage -- uh, that is, before he became a doublicious, spineless weasel as President twelve years later. But, not to worry, he is continuing to "evolve" back to his previous stance after "devolving" a while in national office. Ugh!

"The only people being denied equal treatment in the DOMA case are LGBT couples who are being treated differently than same-sex couples."

You do mean, "...being treated differently than opposite-sex couples," yes?