As a political matter, this is a no-brainer. As a matter of legal ethics and good public policy, it leaves me uncomfortable.
The attorneys and would-be Buttigieg backers, Beth Wilkinson and Alexandra Walsh, are both longtime Democratic donors. Walsh co-hosted a fundraiser for the South Bend mayor and donated $7,200 to his campaign, of which $3,150 has already been returned because it exceeded contribution limits. Wilkinson donated $2,800 to Buttigieg, along with $1,000 to California Sen. Kamala D. Harris and $2,800 to Colorado Sen. Michael F. Bennet.
Buttigieg’s decision to reject the contributions, after being alerted to them by the Guardian, was smart politics. The value of the money to the campaign is far outweighed by the offense that taking it could cause to voters who remain outraged by Kavanaugh’s confirmation.
“With nearly 700,000 donors, a contribution we would otherwise refuse sometimes gets through,” the campaign said in a statement. “We believe the women who have courageously spoken out about Brett Kavanaugh’s assault and misconduct, and we thank the Guardian for bringing this contribution to our attention.”
I believe the women, too. But this episode again raises the question of how to think about lawyers who take on unpopular clients, especially those caught up in the #MeToo movement. Should Wilkinson and Walsh be pariahs within the Democratic Party, their money forever shunned?
Similar issues arose most recently at Harvard University, with student protests against Harvard Law School professor Ronald S. Sullivan Jr., the first African American faculty dean of one of Harvard’s undergraduate houses, after Sullivan agreed to represent Harvey Weinstein in his upcoming rape trial. Harvard ousted Sullivan from his deanship role. (Harvard said its reasons were “not directly related to” Sullivan’s representation of Weinstein.)
There are obvious differences between the two incidents that make the Harvard episode far more problematic. Weinstein is entitled to the presumption of innocence and to a robust defense; Kavanaugh was not charged with any crime. Representing Kavanaugh was not exactly John Adams taking on the cause of British soldiers accused in the Boston massacre.
Meanwhile, the harm to Sullivan — not renewing his deanship role — is greater than the injury to Wilkinson and Walsh, who, after all, get their money back, and have a handy excuse for not writing contribution checks in the future.
And yet. Even though Kavanaugh was not facing prison time, in the maelstrom of the confirmation hearings he did need lawyers whose primary duty was to him, not the White House or the broader conservative movement. (He also needed female lawyers, for the same reason that Senate Republicans felt the compulsion to hire a “female assistant” to question Kavanaugh, and Wilkinson’s Democratic inclinations didn’t hurt either.)
Accepting this kind of controversial representation can be dicey for law firms, who have to attract and keep young lawyers — the kind of young lawyers who might well have been protesting Sullivan’s continued service at the helm of Winthrop House if they were still at Harvard. Wilkinson agreed to represent Kavanaugh, as I report in my book about the confirmation, because “she liked to think of herself as willing to take on anyone in need of legal help and … bristled at the notion that some clients were off-limits because of their politics.”
That’s a good thing in an attorney, not a bad one. If you are a lawyer, you understand that everyone has the right to counsel; everyone does not necessarily have the right to your counsel. So it would have been understandable if Wilkinson had demurred when Kavanaugh called her at home in the fall last year, seeking help. “I understand if you don’t want to” represent me, he told her.
Was it a badge of shame that Wilkinson and Walsh said yes, or a mark of professionalism? In the current, unforgiving climate, it appears that the correct answer is both.