About Me

My photo
This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, April 26, 2011

More on Clement (DOMA Case)

Instead of providing another quick comment on the Clement matter, which I deleted, I will expand things a bit. As noted here recently, former Solicitor General Paul Clement accepted the assignment to defend DOMA for the House of Representatives, or more accurately, the Republicans there since the Democrats didn't want to do so.

His firm, who also has defended GITMO detainees, later withdrew from the case citing "vetting" problems as the main reason. Most assume the true reason was public and internal pressure given the nature of the cause. Volokh Conspiracy has various blogs with many comments, the general sentiment on Clement's side, at times comparing the opposition to McCarthyism and Clement to John Adams defending the soldiers after the so-called Boston Massacre. The fact some of these people know and like Clement might be coloring their opinions somewhat.

Either way, there is some false equivalence going on here, even if the firm is not innocent. Defending possibly innocent prisoner, particularly given it is done gratis in many cases in the GITMO situation, is somewhat different than defending the House of Representatives. I can even see a scenario where some law (local or whatever, nothing many firms wish to give up much to defend) is being defended and public pressure makes it hard to obtain the best counsel. I don't see that the case here. If human rights groups or whatnot want to apply some pressure, especially given firms have equality requirements even for recruitment purposes, I think it's pretty legitimate. I also feel fine disrespecting Clement for defending bigotry.

I don't know all the details, but let's take for granted that the firm (as it said itself) handled things badly here. If the case was something they wanted to avoid, it should have done so upfront, though having just taken the case (this is one thing I haven't seen mentioned yet [here we go]), the detrimental reliance (cf. if the House had to get new counsel at the last minute; here, Clement still is counsel and found a nice copacetic right leaning firm to go to) is pretty low. But, especially given a troubling "a gag order" the House included, I can imagine the case has special aspects that the firm did not properly vet out when it should have.

Yes, it could have dealt with such issues, including renegotiating (if the House accepted) the clause that had them saying they "will not engage in lobbying or advocacy for or against any legislation [to] alter or amend in any way the Defense of Marriage Act." Ideological pressure, including by some inside the firm, also clearly was a major matter here. Such is the problems when trying to find firms to defend bigotry as compared to defending alleged terrorists or the right for bigots to speak their mind. [Relatively cheaply too. Again, huh, looks like there very well could have been various "vetting" concerns aside from opposition to the cause.]

I would have accepted if they let him defend the case. Given his background and all, why wouldn't you think he would at time bring in conservative clientele? And, it is for the greater good if DOMA gets a full defense in court, which will help legitimize it losing there. Note that it is getting that defense from Clement all the same. Not sure if it is upsetting that it is not at King & Spalding. So, contra Clement's concern that to "delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law" or not fear of "abandonment" as a result of the cause being "extremely unpopular in certain quarters" [you know, extremist sorts], I can live with this sort of thing.

This doesn't mean K&S is off the hook, and some who I generally agree with are not great fans of their handling of the situation (though I tend to think they are somewhat off base) but Clement isn't either. He too had a responsibility to fully prepare his firm for the difficulties of such a case. The opposition was far from surprising. Orin Kerr at one point at VC suggests the firm wasn't even aware of the special House requirement until after they withdrew. Really?! Shouldn't Clement clue them in about such a potentially complicating fact? Sounds like there was some lack of proper "vetting" all around.

So, mild "bad boy" to K&S, but not getting very worked up about it.