Former Bush Solicitor General Paul Clement, a partner at the law firm King and Spalding, was contracted by the House of Representatives to defend DOMA (the Defense of Marriage Act) in court. A few days later, K&S dropped the case. Clement resigned from K&S in order to continue defending DOMA.
So why did K&S drop the case? We don’t actually know. We know that gay-rights group Human Rights Council (HRC) had loudly objected to K&S taking on DOMA’s defense, going so far as to contact some of K&S’s clients (including Coca-Cola, who some say may have asked K&S to drop the case) and getting ready for a boycott.
It also seems there was internal dissent within the firm; there were reports that the heads of K&S’s diversity committee hadn’t been consulted, and an unusually broad “gag rule” in the contract forbade any employee of K&S from expressing opposition to DOMA, even outside of the workplace. (This provision appears to be illegal in some states.) And one of the heads of the firm said that the case hadn’t been adequately vetted before being accepted.
I’m sort of a fence-sitter on this one.
1) Tactically, HRC going after K&S was a bad move. What was HRC hoping to accomplish? There was never a chance of leaving DOMA stuck with second-rate representation; even if Paul Clement hadn’t stuck with the case, there are other top-rank conservative lawyers who would have been happy to take the half-million-dollar case.
(The “gag order” was worth fighting against, but probably could have been renegotiated. If it turns out K&S withdrew from the case because Congress refused to budge on “the gag order,” then I’d entirely approve of K&S’s decision.)
2) I don’t like the idea of boycotts limiting people’s (or Congress’) choice of lawyer or law firm. In close cases, the ability to retain a top-flight lawyer could make a difference; the outcome of a court case shouldn’t be determined even indirectly by boycott threats. Our court system is imperfect, but making boycotts part of the system makes it even worse.
And, again, HRC didn’t hurt DOMA’s chances at all. DOMA has powerful interests behind it, and Congress has $500,000 to throw around defending it. A culture of boycotting law firms could do more to harm the poor and the powerless than anyone else. It’s not hard to imagine the US Chamber of Commerce pressuring a law firm not to represent a small union, or a client like Lily Ledbetter.
3) But I don’t primarily blame HRC. Blaming HRC for protesting is like blaming a fish for swimming; protesting is what activist groups do. I place most of the blame on K&S, which is a huge and powerful law firm, well able to stand up for themselves; having made the unwise decision to accept DOMA’s defense, they shouldn’t have allowed political pressure to sway them. (If that is what swayed them…. oy!)
4) Some of the criticisms of K&S, and of HRC, are overblown. Andrew Sullivan says that HRC is a “bully,” for example; but it’s hard to see one of the nation’s most powerful law firms as a helpless wimpy kid that only a cowardly bully would pick a fight with. When you fight the well-heeled and powerful, you may or may not be right, but you’re not a bully.
I’ve heard several people talk about the constitutional right to a defense. But that’s criminal law; DOMA is civil law, and there’s no constitutional right to a lawyer in a civil case. Nor is DOMA a person (or corporation) with constitutional rights. Nor was there any chance that DOMA would be undefended in Court.
5) Frankly, what disturbs me most about this is the free speech issue of the House of Representatives negotiating a contract which exerts broadbased control over the political speech of private citizens in their non-work time.
6) Boycotts don’t sit comfortably with free speech, for me. Boycotting a company because it mistreats employees, or because it commits crimes, makes sense to me. If we boycott Snoopy’s Pants Factory because they’re a sweatshop, we’re saying “treat your workers decently or we’ll drive you out of business.” That’s a reasonable, principled stand; companies with indecent labor conditions deserve to be driven out of business.
But boycotting Snoopy’s Pants Factory because Snoopy supports political causes I disagree with? That’s saying “stop advocating for things I disagree with or we’ll drive you out of business.” That’s not a message I’m comfortable with.
When private citizens use economic pressure to shut people up that’s not technically censorship. But it still goes against the ideal of free speech.
On the other hand, people have the right to decide where to spend their money — and where not to spend their money. It’s not a simple issue.