Constitutional Law

Non-Sequiturs: 06.14.11

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Judge Vaughn Walker: He's here, he's queer -- deal with it.

* An associate in the New York office of Gibson Dunn, Moshe Gerstein, has been hit with child pornography charges. (More coverage to come; if you know him personally and have info to share, please email us.) [New York County District Attorney's Office]

* Motion to vacate the Proposition 8 decision, on the grounds that (now retired) Judge Vaughn Walker is gay and has a partner, DENIED. [Poliglot / Metro Weekly]

* Vivia Chen has some advice for married couples trying to juggle their careers and domestic duties: “Keep mom on the job, and get dad a fresh apron.” [The Careerist]

* Confession of an affirmative action baby: “It pains me to say this, but putting down black might help my admissions chances and putting down Asian might hurt it.” [Althouse]

* Congratulations to UC Irvine Law on winning provisional accreditation from the ABA — and condolences to the University of La Verne College of Law, which just lost it. [National Law Journal]

* How is a constitution like a computer operating system? Professor Glenn Reynolds has some interesting thoughts on the subject. [SSRN via Instapundit]

* Meanwhile, Mark Steyn wants to know: “Is Every Lesbian Blogger a Middle-Aged Man?” [National Review Online via Instapundit]

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Can We Whitewash the Alabama Constitution?

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The Constitutional Daily tweeted a very interesting question at me this morning:

Bill removing racist language from AL constitution opposed by black lawmakers – http://bit.ly/iqmDsu – @ElieNYC please explain

All right, I’ll put on my “ask a black dude” hat. And I can explain this.

But it’s complicated. And it requires understanding the subtleties of the positions of all parties involved. And it’s hard to really carve out a strident and principled position either way.

So, you know, this is a great conversation to have on the internet….

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King & Spalding: More DOMA Drama, Plus Salary and Bonus News

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Paul Clement and John Boehner: now out of King & Spalding's hair.

Some people, including crisis communications experts, think that King & Spalding should just shut up already about the DOMA debacle. The firm agreed to represent the House of Representatives in defending the controversial Defense of Marriage Act, and then almost immediately turned around and withdrew from the representation. This prompted the departure from the firm of star appellate litigator Paul Clement, former Solicitor General of the United States, who took the DOMA matter over to his new firm, Bancroft PLLC.

The decision to drop DOMA defense also led to the defections of King & Spalding clients, like the NRA and the state of Virginia. It generated criticism of the firm from diverse quarters — everyone from Ken Cuccinelli to the New York Times editorial board. [FN1]

Despite the advice of the communications experts (with which I personally agree), King & Spalding continues to discuss the DOMA debacle. The firm is starting to sound like a therapy patient that won’t relinquish the couch, and just wants to yap and yap and yap. Are you listening?

Let’s look at the latest revelations — and also some compensation news out of K&S….

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Judging Is Just Politics By Other Means

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I like crusading AGs with names like "Spitzer" more than "Cuccinelli," but that's just me.

Obamacare scored a huge victory today. Not because of an election or an impassioned debate. Not because of a fresh argument or a political compromise. Not even because of a considered legal opinion. No, Obamacare scored a major victory just because the Fourth Circuit panel randomly chosen to hear the challenge to Obamacare, an appeal spearheaded by crusading Virginia attorney general Ken Cuccinelli, will be made up of three judges appointed by Democratic presidents.

And because we live in a country where our judiciary is about as apolitical as a parliamentary house, it’s reasonable to think that at least two of the three judges (two of whom were appointed by Obama himself) will deliver an Obamacare victory.

Does anybody have a problem with that?

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Quote of the Day: Classy Clement

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I think it’s important for lawyers on the other side of the political divide from Paul, who’s a very fine lawyer, to reaffirm what Paul wrote [in his resignation letter from King & Spalding]. Paul is entirely correct that our adversary system depends on vigorous advocates being willing to take on even very unpopular positions. Having undertaken to defend DOMA, he’s acting in the highest professional and ethical traditions in continuing to represent a client to whom he had committed in this very charged matter.

– Seth Waxman, former U.S. Solicitor General (under President Clinton) and current WilmerHale partner, commenting to Washingtonian magazine on the decision of fellow former S.G. Paul Clement to resign from King & Spalding and join Bancroft PLLC. At Bancroft, the D.C. boutique law firm founded by former Assistant Attorney General Viet Dinh, Clement will continue to represent the Bipartisan Legal Advisory Group of the House of Representatives in its defense of the Defense of Marriage Act (DOMA).

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Paul Clement Quits King & Spalding After K&S Moves to Drop DOMA Defense

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Paul Clement (left) and John Boehner (right)

The leading law firm of King & Spalding, which came under fire from LGBT rights groups after its defense of the Defense of Marriage Act (DOMA) became public last week, has moved to withdraw from the litigation. The firm cited problems with the vetting process applied to the engagement.

And Paul Clement, the former U.S. Solicitor General and King & Spalding partner who was going to spearhead the DOMA defense, is now a former K&S partner. He resigned from K&S this morning, in response to the firm’s withdrawal decision. Clement will continue his representation of the House of Representatives in DOMA litigation from his new home, Bancroft PLLC, the high-powered D.C. boutique founded by a fellow alum of the Bush Department of Justice, Georgetown law professor Viet Dinh.

UPDATE (12:20 PM): We reached out for comment to Professor Dinh, who said: “Paul wins the biggest cases and Bancroft solves the most complex problems. This is a no brainer. We will continue to do what Paul and I love doing most, which is to serve the best interests of our clients.”

Let’s take a look at King & Spalding’s stated justification for dropping the DOMA representation, and at Paul Clement’s resignation letter….

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Quote of the Day: Defending the Defense of the Defense of Marriage Act

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[A] lawyer who defends an individual or a law, no matter how unpopular or distasteful, helps ensure that the outcome is viewed as fair. If DOMA is struck down, the fact that it was defended effectively will make the victory for its opponents more credible…. We hope [Paul] Clement loses, but we don’t begrudge him the assignment. Even a lawyer of his skills will find it hard to defend a discriminatory law like DOMA.

– a Los Angeles Times staff editorial, defending former Solicitor General Paul Clement and his law firm, King & Spalding, against criticism of their defense of the Defense of Marriage Act (DOMA).

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Paul Clement and King & Spalding Defend DOMA — at a Discount

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Paul Clement (left) and John Boehner (right)

They say that everyone is entitled to a lawyer. [FN1] But is everyone entitled to the services of former U.S. Solicitor General Paul Clement, one of our nation’s finest appellate advocates? At a discounted rate, no less?

As we mentioned in yesterday’s Non-Sequiturs, the U.S. House of Representatives has hired Paul Clement and Clement’s law firm, the venerable King & Spalding, to defend the Defense of Marriage Act. DOMA, which essentially bars recognition of same-sex marriages for purposes of federal law, has been struck down in part by various federal courts, and the Obama Administration has decided to stop defending the 1996 law in constitutional challenges.

So the House Republicans have stepped up to the plate to defend DOMA. And they’ve hired some high-powered counsel for the task, namely, Clement and King & Spalding.

The contract between the House and King & Spalding was made public today by the office of House Minority Leader Nancy Pelosi (after Speaker John Boehner declined to release it). The agreement contains some interesting tidbits, including the hourly rate the House will be paying, as well as a cap (although an adjustable one) on the fees to be paid to K&S.

Let’s take a look, shall we?

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Morning Docket: 04.05.11

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Kaga, L., dissenting

* Did Malcolm Gladwell’s endorsement lead to an increase in Colorado Law applicants? Malcolm Gladwell, a man whose book Blink was described by Richard Posner as “written like a book intended for people who do not read books.” [Law Week Colorado]

* A litany of legal challenges faces the Obama administration now that they’ve backtracked on Khalid Sheikh and the boys. [msnbc.com]

* The Supremes ruled against Arizona taxpayers who claimed a tax credit for religious school donations was unconstitutional. Justice Kagan popped her dissent cherry on this one. [NPR]

* Connecticut looks to “add teeth” to a law that attempts to determine whether racial profiling exists in the state. Sorry, I don’t find anything funny about racism. Unless, of course, we’re talking about the basketball scene in Soul Man. [Hartford Courant]

* Google has bid $900 million on a whole bunch of patents. Meanwhile, the patent to Google Wave is being peddled for two dollars and a box of envelopes. [Financial Times]

* “Police have nabbed the second prepubescent punk wanted for trying to rip off the religious headdress of a Muslim schoolgirl on Staten Island.” [New York Post]

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Are There Any Egyptian Constitutional Scholars in the House?

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Egyptian President Hosni Mubarak has finally decided to step down. We should all be thankful that this has been a relatively “bloodless” coup. We should all take notice of a middle eastern regime change that didn’t require the use of American armed forces. We should all wish the people of Egypt the best of luck as they forge ahead into their uncertain future. And we should all pray that in the end Egypt continues on its moderate path of relating to Israel and the west.

That last part is key. Sure, by the end Mubarak was like the guy who won’t leave your house after the Super Bowl party. We’ve all been there. The people of Egypt tried everything you or I have tried in that situation: “Dude, it’s getting late, I have to work in the morning,” “No, really, I can handle the dishes by myself,” “Seriously brah, if you’re here when my wife wakes up she’s going to be pissed.”

But despite his inability to take a hint, Mubarak was still our friend. There’s no guarantee that the next guy will be.

In fact, who is the next guy? We know that Vice President Omar Suleiman is technically in charge now. And many suspect that actually there is a general with a gun who is really in charge. But who is supposed to be in charge? (This is starting to sound like Howrey.)

Seems to me, once God stopped “anointing” people, He created lawyers to answer just this kind of a question…

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