The Difference Between Defending DOMA and Neo-Nazis and the ACA

by Beverly Mann

The Difference Between Defending DOMA and Defending Neo-Nazis and the ACA

A post via Blog of Legal Times on Wednesday titled “King & Spalding Offers New Details on Marriage Mess,” which summarizes a report that day in one of its sister ALM (American Law Media) publications, the Atlanta-based Daily Report Online by staffer Meredith Hobbs begins (subscription needed):

The head of King & Spalding’s Washington office is accepting blame for what he calls the “misunderstanding” that led the firm last month to accept, and then drop, the U.S. House of Representatives as a client in same-sex marriage litigation.

(Rdan…slight corrections for readability and sourcing original material)

King & Spalding is a mega-law-firm based in Atlanta that in late 2008 won the derby to hire Paul Clement, Bush’s solicitor general since 2005 who had left the Justice Dept. in June 2008, to head its Supreme Court and appellate division. The deal involved a reported $5 million signing bonus, well worth the price because petitions (known as “cert.” petitions) asking the Supreme Court to agree to hear the case, when filed on behalf of clients by former Justice Dept. solicitors general—the Office of Solicitor General is the division of the Justice Dept. that argues cases before the Supreme Court on behalf of the United States—are guaranteed to actually be read by the justices, and the Court is more likely to grant the petition to hear the case even than petitions filed by former law clerks to Supreme Court justices. Which is saying quite a bit, because former law clerks to Supreme Court justices now hold a near-monopoly on getting private clients’ cert. petitions granted.

Clement, in keeping with modern tradition for former solicitors general, is a two-fer. He clerked for Scalia for a year after clerking the year before—his first year out of law school—for a lower federal appellate judge, a de facto prerequisite to a Supreme Court clerkship. So he’s really, really valuable to clients who want their cert. petitions read by justices, and granted. And to law firms that want to be known as a “presence” at the Court.

The referenced marriage mess is that last month, after the Obama administration announced that it (i.e., the Solicitor General’s office) would not be defending the constitutionality of the Defense of Marriage Act (DOMA), which defines marriage as between a man and a woman, against lawsuits challenging the statute’s constitutionality, a group of Republican House members hired Clement to represent them in defending the statute’s constitutionality, notwithstanding that they’re not parties to these lawsuits. But Clement signed the retainer contract without first getting authorization from the firm’s five-member committee that vets potential new clients and cases. And the contract itself contained an unusual and weird clause, now infamously known in legal-pundit circles as the “gag” provision, barring employees of the firm—attorneys, staff members and, I guess, the mailroom folks and couriers—from speaking ill of the statute.

When mass mutiny, by firm employees and corporate firm clients, including longtime client Coca-Cola (virtually all of the firm’s clients are corporations), threatened, upon the public announcement of the firm’s representation, escalating in intensity after the gag provision was disclosed, the firm announced that it would attempt to withdraw from the representation. The firm said the prospective representation hadn’t been submitted through the firm’s normal channels and hadn’t been vetted, and that, had it been, the firm would have declined the case. Clement, in turn, saying he had been led to believe that the firm supported the representation, resigned from the firm, saying that he could not ethically withdraw his representation. He joined a small firm comprised mostly of former Bush administration War on Terrorism veterans.

He then issued a public statement, seconded by several legal pundits, including some, such as Slate’s Dahlia Lithwick, whom I admire and whose writings I usually agree with, argued that it sets a dangerous precedent for a law firm to succumb to public pressure to decline to represent (or, as here, to withdraw from representation of) an unpopular client or an unpopular cause.

I’ve admired Clement himself, actually. As solicitor general, he was not an automatic supporter of rightwing legal positions when the Supreme Court, as is its custom, would ask the Solicitor General’s office for its view on whether the Court should agree to hear a particular case, usually concerning interpretation of a federal statute, in a case in which the federal government is not a party. The solicitor general is not the one who makes the final decision on this; the attorney general and sometimes the president himself is, if the issue is important ideologically or for, say, law enforcement purposes. But in cases in which it seems likely that the decision was left up to Clement, he didn’t always favor the conservative position.

In one important access-to-court case, for example, Winkelman v. Parma City School District, Clement filed a brief in support of a cert. petition filed by the parents of an autistic child who tried, without retaining counsel, to sue their local school district on their son’s behalf asking for injunctive relief to force the district to comply with a particular provision of the Individuals with Disabilities Education Act that the parents said the district was ignoring. The issue was whether the parents could “represent” their son in the lawsuit or whether instead they must hire a lawyer to that, rendering the right to sue dependent on the family’s ability to pay substantial legal fees. The Court, probably persuaded partly by Clement’s brief, agreed to hear the case, and, then probably influenced by Clement’s friend of court brief after the Court agreed to hear the case, ruled for the parents and their son. The opinion has implications for similar access to court by, say, elderly adults “represented” as “next friend” by one of their adult children, and asking for injunctive relief under various laws.

And in another case involving access to court by the non-wealthy, Clement, during his King & Spalding years, argued—unsuccessfully—in favor of possible higher contingent compensation from losing governments under certain circumstances, under a federal statute that requires a losing government in a constitutional civil rights case to pay fair-value attorneys’ fees to the lawyer who represented the plaintiff. Currently, he is among the lawyers representing a group of California state prisoners before the Supreme Court in a case in which the prisoners won on their claim for injunctive relief in the lower federal courts, claiming that California’s decades-long, extreme overcrowding in their prisons caused a lack of adequate health care so severe that it resulted in numerous deaths, in violation of the Eleventh Amendment’s prohibition of cruel and unusual punishment.

And Clement’s not just a “name.” Judging from journalists’ reports on his recent high-profile oral arguments at the Court, he strikes me as brilliant analytically, and he’s wonderfully quick-witted.

So I was disappointed when a few weeks before the DOMA controversy broke, it was announced that he would be representing the challengers to the Affordable Care Act’s constitutionality on appeal in the case in which a federal trial-court judge in Florida pronounced the entire statute unconstitutional earlier this year. It’s not that the Supreme Court justices will actually cast their vote based on any argument that has not already been made and thoroughly dissected. But if anyone can make a Supreme Court majority vote to strike down this law as unconstitutional seem like anything but Bush v. Gore redux, it is Clement.

But my disappointment about his representation of the ACA challengers is just a personal one. After all, in the ACA case, he’s playing a standard role as counsel, representing clients who claim that Congress exceeded its constitutional authority and that the result violates their individual rights.

In fact, the classic examples used to skewer King & Spalding’s action in the marriage mess all are of cases in which the lawyer is attempting to help an unpopular individual or group vindicate a constitutional right—the right of an accused mass murderer to a fair trial; the First Amendment right of neo-Nazis to march through Skokie, Illinois, then home to a substantial number of Holocaust survivors; recently, the claimed First Amendment right of the members of that absurd Kansas-based church to protest gay rights by parading at the funerals of soldiers killed in action in Iraq or Afghanistan, holding signs saying that the death was god’s retribution. (E.g., “Thank God for dead soldiers.”)

But every time I read a new contribution to the body of literature on the marriage mess, I wonder momentarily whether Clement’s decision to represent the group of House members, and the law firm’s decision to remove itself from that representation, really are the equivalent of, say, the ACLU lawyers who represented the neo-Nazis in the Skokie-march case and the people who thought the ACLU should not have represented them.

The neo-Nazis’ own cause, the message they wanted to spread, was abhorrent, but the cause the lawyers were championing was free speech. Clement, in his public statement, said his own opinion about the propriety of the DOMA as statutory policy is irrelevant (and sort of hinted that he personally doesn’t favor that legislation). And he’s right, of course; all that’s at issue is whether the statute is constitutional.

But I think he’s wrong that there’s no distinction between a lawyer’s representation of a party whose rights are at issue and a non-government lawyer’s representation of a group of members of Congress in order to defend the constitutionality of a law whose intended effect is to constrain the rights of others. What’s different is, first, that legal representation of members of Congress who are claiming that a statute is constitutional is more like a legislative or lobbying act than legal representation of a client. That’s true even when the purpose of the statute at issue isn’t to limit others’ rights. And, second, when, as here, the sole purpose of the statute is to limit others’ rights, it’s really not equivalent to representation of a party who’s own rights are at issue and whose case might, if that party is successful in the litigation, expand the rights of others.

I don’t suggest that there is something wrong with Clement’s decision to accept the case. What I do suggest is that the decision was more freighted with substance than the quick analogies suggest, and that King & Spalding was not wrong to view it that way.