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Right Turn
Posted at 02:32 PM ET, 04/25/2011

The left decides who gets lawyers

The left has predictably gone batty over the resignation of former solicitor general Paul Clement from the law firm of King and Spalding after the white-shoe firm backed out of its representation of the House of Representatives on the Defense of Marriage Act case. Greg Sargent interviewed a gay rights activist and got a remarkable admission: The left favors politically bullying to deter lawyers from representing clients it doesn’t like:

I just got off the phone with leading gay rights advocate Richard Socarides, who had led the charge against the firm, and he tore into the decision by Clement — the Solicitor General under George W. Bush — by pointing out that it’s folly to present this as a principled stance.

“He tries to make the case that lawyers should represent unpopular causes — but this is not merely an unpopular cause, this is an un-American cause,” Socarides said. “If a lawyer represents an unpopular client who’s defending an important principle, that is what the legal system is about. If the client is unpopular but the principle is important, then it’s important to do.”

“But this is not an important principle,” Socarides continued. “The only principle he wishes to defend is discrimination and second class citizenship for gay Americans. It’s very wrong.”

Socarides made an important point: Even if the House GOP will be able to continue its defense of the law, the decision by King and Spalding signals that defending opposition to gay marriage is now politically toxic with the mainstream, a clear sign of the shift in public opinion on gay rights.

And who will determine what is “important”? Why Socarides, of course. The entire notion is at odds with the left’s usual defense of attorneys who represent all manner of heinous defendants. When conservatives merely wanted to know which Obama Justice Department attorneys had represented al-Qaeda terrorists the hollering was deafening. (McCarthyism! The right of legal representation!) When former White House counsel Greg Craig’s record of representing a long list of unsavory characters came to light liberals didn’t bat an eye.

The only ethical problems that would have excused King and Spalding’s withdrawal from the case would have been a conflict of interest (as the Gitmo attorneys encountered in switching sides to represent the U.S. government against detainees) or the absence of a viable set of facts or legal theory on which to base the case (which is not remotely in evidence here).

Frankly, the left’s unprincipled stance may come as a shock to the criminal defense bar. After all, don’t those people “defend murder,” under the left’s reasoning?

It is worth recalling the passionate words of an all-star lineup from the Brookings Institution when some conservatives objected to the Justice Department employing lawyers who represented detainees:

Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.

To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.

But, you see, the rules are entirely different when the principle at issue is a pet position of the left.

And in case it matters, I think the Defense of Marriage is rotten legislation and, given the path traveled the Supreme Court, may well be held to be unconstitutional. But in our legal tradition that’s irrelevant — unless of course you subscribe to the “left decides who deserves representation” school of thought.

By  |  02:32 PM ET, 04/25/2011

Categories:  law

 
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