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    King & Spalding Says Yes to Gitmo Detainees, No to Congress

    King & Spalding Says Yes to Gitmo Detainees, No to Congress

    Under pressure from groups opposed to the Defense of Marriage Act, the large Atlanta law firm King & Spalding is seeking to withdraw from representation.  In a transparently phony excuse, the head of the firm blames an improper “vetting” process, when everyone in the world knows that the reason King & Spalding is dropping the case is because of protests by groups opposed to DOMA.

    Attorney and former Solicitor General Paul Clement has resigned from the firm in protest:

    In a letter to King & Spalding chairman Robert Hays, Clement says he chose to resign not because he has strong personal views about DOMA. Rather, he writes, “I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters.”

    King & Spalding had faced protests and threats from pro-gay marriage groups in light of its decision to defend DOMA.

    “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.”

    In his resignation letter, Clement also takes a direct shot at Hays, the firm’s chairman, who earlier today said through a spokesman that “the process used for vetting this engagement was inadequate” — that is, that King & Spalding had not sufficiently looked into the issue before taking the case. “I would never have undertaken this matter unless I believed I had the full backing of the firm,” Clement writes. “I recognized from the outset that this statute [DOMA] implicates very sensitive issues that prompt strong views on both sides.”

    “If there were problems with the firms’ vetting process,” Clement says, “we should fix the vetting process, not drop the representation.”

    Until recently, the defense of DOMA was being handled by the Justice Department, until an abrupt shift by the Obama adminstration, causing Congress to seek its own counsel.

    The attempt to deprive Congress of its counsel of choice based on the alleged unpopularity of DOMA (as Clement says, “in certain quarters”) stands in stark contrast to the position of the American legal community when it comes to representing detainees at Gitmo.

    King & Spalding has devoted substantial resources to representing, free of charge, several detainees.  King & Spalding highlights such representation on its website.

    I do not criticize King & Spalding for representing unpopular clients or causes.  Such representation is in the best tradition of the legal profession.

    I do find it odd, however, that King & Spalding has no problem defending the detainees at Gitmo while not being willing to represent the United States Congress.

    Update:  I probably should have dealt preemptively with the inevitable response, reflected in the very first comment, “Defending the prisoners at Gitmo has to do with due process and the bill of rights under the Constitution.”  There are very good and substantial arguments that DOMA is constitutional, regardless of how one feels about the substance of the law, and that was the position of the Obama administration until recently.  The issue is that King & Spalding certainly would have withstood pressure to drop the Gitmo detainees and the legal theories purused, but showed no such courage when it came to DOMA.  No one is saying that King & Spalding must be forced to represent any particular client, but it also is fair to point out the hypocrisy.

    The full resignation letter by Clements is here.

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    @Professor Jacobson I do not think there is any other choice but to take the issue to the nine Supremes. There has to be a consistency among the states and the only way is for SCOTUS to rule. It is what their job happens to be. I do not think leaving this issue up to a referendum is the way to go. By that thinking every time there is a great societal issue or change of course we vote on every issue. That is not our republic. Of course those who think SCOTUS is obsolete can try to amend the Constitution to deny SCOTUS a role in our three branches of government but I don't think it would get very far. There is a reason we have checks and balances in our Constitution because the founding fathers knew that the legislatures to be venal self-interested organisms in need of oversight. If we want our legal ideas represented we need to make sure that we elect the right person for the Presidency and the Congress and luckily they still do not have the last word.I for one do not think that the idea of civil rights or women's rights would have been successful if left to each individual state. Society doesn't necessarily change unless it gets a huge kick in the pants, especially when it is full of those that are ignorant and devoid of any understanding of law, constitutionality and quite frankly lack respect for others of the human race. I for one as a woman and Jew do not think allowing those that derided me because of my sex and my religion should have a say in whether I am allowed to be a full fledged member of society. Somehow I prefer to go the route of the Bill of Rights. History itself proves that the only place for minorities to truly be protected is by the Supreme Court.(Congressional Civil rights Law was only useful once it was fully backed by SCOTUS)

    Citizen United may be argued about whether the Court was right or not but it is the law of the land until SCOTUS overrules itself or Congress finds a way to rewrite the present law to do a endrun around the SCOTUS ruling.

    Yes, many same-sex marriage advocates didn't want to go to SCOUTS because they feared that SCOTUS is too conservative leaning and once ruled that would be the end of the issue.Hence SCOTUS is the final arbiter of law in this country. However, that is not the issue at hand. The issue that we were discussing was whether King had a right to withdraw from representing Congress due to DOMA and whether a lawyer has an obligation to defend a law they disagree with or believe to be unconstitutional. It is an interesting discussion and it goes to the heart of ethical guidelines for lawyers. However I do believe that lawyers have a right to defend their beliefs and decide for themselves if they wish to defend a client. The underlying issues of civil rights and constitutionality is what the civil rights bar is all about after all is it not?

    Meanwhile I have found something for you that will provide an answer for our last discussion from a few months ago about social media and the responsibility of partners in law firms. It is from the law firm of Mayer Brown;=6

    Tlaloc, "a piece of paper". Funny, I seem to remember another group who equated laws and treaties to "scraps of paper". Of course, they were socialists too.

    @Darleen a little something for you about checks and balances in the Constitution and the job of each branch. Before you discuss, even in your self-acknowledged drug addled stupor the obligations and purposes of the SCOTUS it would behoove you to read it. Then as I have said earlier pick up a Constitutional law book and learn something.


    Couple of questions for ya. You state "The US does not summarily execute persons caught on a battlefield. The US is not party to any valid treaty that would allow that.". This is blatantly false. Such executions are allowed under the Geneva Convention. The most famous one is a picture I'm sure you've seen a thousand times: Pic. Making such a stupid statement really undermines your arguments.

    Second, you claim that "There has to be a consistency among the states" with regard to same sex marriage. Why does their "have" to be? DOMA doesn't prohibit any state from recognizing such, all it says is that other states are not required to recognize them, a position that is entirely consistent with, say, gun control and concealed carry laws, something that is, unlike SSM, actually enshrined in the Constitution. You're arguing that SSM should be given protection that is NOT afforded to an enumerated right. That's….absurd.

    "Tlaloc, "a piece of paper". Funny, I seem to remember another group who equated laws and treaties to "scraps of paper". Of course, they were socialists too. "

    You really need to learn that the term socialist isn't the emotionally charged term you think it is, at least not for the majority of people. Consequently your intended impact rather fizzles.

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