More From the Department of False Equivalences

by Kevin Jon Heller

Not surprisingly, conservatives and the Obama administration are falling all over themselves to praise Paul Clement for his brave willingness to represent the House of Representatives at the low, low rate of $520.00 per hour — practically pro bono.  The idea that zealous representation is an end in itself, regardless of client or cause, is one of the most basic tenets of the legal profession, a useful myth that allows skilled lawyers to convince themselves that getting rich defending polluters, companies that manufacture defective products, and banks who throw people out of their homes not only contributes to the public welfare, but is in fact an act of selflessness deserving of moral praise.

The false equivalence between Clement and lawyers who actually work pro bono on unpopular causes (conservative or progressive) or who make $35,000 per year providing legal services to the poor and powerless is offensive enough.  Even worse is witnessing Jonathan Adler, one of the bloggers at Volokh Conspiracy, describe the Human Rights Campaign’s pressure on King & Spalding to drop the defense of DOMA as the “new McCarthyism” (emphasis added):

Clement’s decision to represent Congress and defend DOMA was controversial in some circles, and understandably so. Although DOMA was enacted with broad bipartisan majorities and signed into law by President Clinton, it prevents federal recognition of same-sex marriages, even when sanctioned by state law. For supporters of same-sex marriage, that’s a tough pill to swallow.

Angered over Clement’s decision, the Human Rights Campaign launched a campaign against King & Spalding, seeking to punish the firm because one of its partners dared represent a controversial client. According to HRC, the representation was “a shameful stain on the firm’s reputation.” In reality, what’s really shameful is HRC’s McCarthyite attack on Clement and King & Spalding — particularly given the nation’s sorry history of efforts to prevent effective legal representation of marginalized groups and unpopular causes.

As I noted yesterday, I think pressuring law firms to drop clients is generally a very bad idea.  To describe the HRC’s efforts as “McCarthyism,” however, is ridiculous.  Joseph McCarthy was a United States Senator who used the power of his position to destroy the lives of dozens, if not hundreds, of innocent people.  The HRC is a civil-rights group that is attempting to shame King & Spalding for accepting a client whose cause is antithetical to the firm’s own values, given its long history of support for LGBT rights. It is certainly reasonable to argue that the HRC is playing a dangerous and counterproductive game by trying to convince King & Spalding clients to leave the firm; I’m inclined to agree with that position.  But there can be no comparison — none at all — between grassroots campaigns and state-sponsored persecution.

When the government passes a law disbarring lawyers who represent conservative causes, we can talk.

One Response

  1. Kevin, sometimes what might be at stake is an important legal principle, regardless of what some might think of the particular client or cause.

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