Headquartered in Atlanta, King & Spalding is an old-fashioned, white-shoe, silk-stocking (and all those other adjectives that suggest “exclusive”) law firm. Its politics tend toward the moderately conservative, as is probably true of most white-shoe law firms. It has been home to the late Griffin Bell, who served as Attorney General in the administration of Jimmy Carter, and Deputy Attorney General Larry Thompson, who served in the administration of George W. Bush.
So it is big news, indeed, that King & Spalding has decided to back out of representing Congressional Republicans who wish to go to bat for the indefensible “Defense of Marriage Act” — a piece of flat-out bigoted nonsense now repudiated by one of its primary sponsors, former Republican Congressman Bob Barr. (Correction: Faced with lawsuits against it, the Obama administration has decided not to defend some parts of DOMA in court, believing a crucial section to be unconstitutional.) The act tries, basically, to prohibit same-sex marriage.
King & Spalding Chairman Robert Hays issued a statement saying (via Ben Smith):
In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.
Just a few years ago, that sort of pro-DOMA brief would have been a no-brainer for a firm like King & Spalding. But same-sex marriage has become increasingly popular with Americans, who see no reason that gay and lesbian Americans should not be entitled to the full array of civil and human rights, including the right to marry. Apparently, K&S was stung by the harsh criticism it had begun to receive from gay rights activists and human rights groups.
However, the decision to drop the case has caused a rift in the firm and prompted the resignation of one of K&S’s high-profile partners, Paul Clement, who served as Solicitor General under George W. Bush. Clement would have been the lead lawyer defending DOMA in court. He said,
“Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law,” Clement continues. “Much has been said about being on the wrong side of history. But being on the right or wrong side on the merits is a question for clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”
I have a lot of sympathy for Clement’s argument that lawyers shouldn’t dump clients just because of “hostile criticism.” I have admiration for the attorneys who have defended accused terrorists at Guantanamo, in the face of vicious criticism from very powerful people.
But it is one thing for a law firm to represent an unpopular person accused of a crime, but another thing entirely to represent an idea that is bigoted, irrational and morally wrong. King & Spalding is to be admired for abandoning DOMA (even if it took public pressure to bring the firm around). The nation would have been much better off if good lawyers had stopped defending Southern racism much sooner than they did. Members of the bar have no obligation to represent morally unjust causes.
In defending DOMA, Clement is no Atticus Finch.