Neither of those two goals serves the ends of the justice system. Recall that one of the reasons the Proposition 8 trial in California was so maddening to watch last year was that the legal defense advanced of the gay marriage ban was half-hearted and circular. As Linda Hirshman has pointed out, the legal defense of DOMA will be both difficult and dispiriting. What possible ends are served by having that done badly or not at all? Instead of attempting to hobble the litigation process, proponents of the DOMA litigation should celebrate an opportunity to finally air the question of equal rights for gay marriage publicly and effectively.
You can call it "educating" a law firm when you threaten it with charges of bigotry, but don't claim that as a victory against bigotry. It's not. Zealous advocacy means teaching America that intolerance is wrong, rather than evincing intolerance for everyone on the other side. If Seth Waxman, who will be opposing DOMA in the courts, can find nothing to complain of in Clement's representation, there should be no complaints. DOMA should die in a court of law because it is small-minded and illegal, not for lack of a defender.
Ben Wittes makes this point when he writes: "When interest groups pressure law firms to drop such representations, they are still demanding adjudications stripped of a full record—or objecting to the right of their opponents to have adjudications at all. And if major law firms will buckle under such political pressures before defending a (rightly, in my view) disfavored federal statute, can anyone really imagine that they will not also abandon other disfavored clients?"
Don't like the idea of the taxpayer financing the GOP's personal hate-fest? Me neither. But that was the deal struck when the Obama administration decided not to defend DOMA itself. A lot of taxpayers dislike the idea of footing the legal bill for the defense of death row inmates or the installation of crosses on public lands. That's what the system of justice sometimes demands.
In the end, politicizing and demonizing the attorneys who represent unpopular clients or causes is really no different than politicizing and demonizing the judges who vote to uphold the rights of unpopular clients. And, yes, I am looking at you, bullies who ran off former members of the Iowa Supreme Court for their votes to uphold gay marriage. Both actions misapprehend the difference between political power and justice. And both ignore the fact that—given a chance to do so without pressure, politics, or threats—the courts will more often than not get it right on their own.
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