Slate’s Jurisprudence page is the only part of the online magazine I keep on my site aggregator, and that’s so I can read dahlia Lithwick’s columns. Only NPR’s Nina Totenberg can breath life into descriptions of legal arguments as well as Ms. Lithwick, who consistently treads the fine line between objectivity and showing her political inclinations. (The Beloved Spouse has called her my intellectual mistress, and we refer to her by her first name around the house.) I stand second to no man in my admiration of her gifts and insight. (Her husband excluded, hopefully.)
She sure blew it today, though.
The question is not whether the Defense of Marriage Act deserves adequate and enthusiastic representation in court. of course it does, no matter how reprehensible I may find it. Flawed as it is, ardent advocacy is the best hope we have for our judicial system, be it for individuals, corporations, or laws like DOMA. (It would be nice if judges refrained from some of the advocacy, having supposedly left that behind when they ascended to the bench, but that’s a different post.)
The issue here is who’s at fault for King & Spalding’s refusal to provide that advocacy after agreeing to do so, after scathing attacks by a gay rights group. Ms. Lithwick blames the gay rights folks for going too far and placing King & Spalding in a position where keeping on with the DOMA case would cost them clients and money.
The gay rights group may have gone too far; that’s a different argument, too. The villains here are still King & Spalding, who folded under pressure. It’s not hard to see what kind of advocacy anyone could expect from them. They’ll support you so long as your fees bring in more money than they lose on those who disagree. Then you’re on your own. Quite the idealistic image for law students to aspire to.
I don’t suppose you’ll see many pictures of Thurgood Marshall or Morris Dees in those offices. You know, lawyers who’d take on a client and stand up for him, whether the firm agreed with his position or not.
I doubt the ACLU will be hiring these guys for anything in the near future. Kudos to Paul Clement for resigning.