Yesterday, President Obama hosted members of GLBT rights organizations at the White House. Formally, the meeting commemorated "LGBT Pride Month." Underneath the surface, however, the meeting served a different purpose. Obama convened the gathering in order to alleviate growing anxiety among GLBT organizations concerning his commitment to gay rights.
Although Obama promised to seek the repeal of the Defense of Marriage Act (DOMA) and Don't Ask, Don't Tell, the military continues to discharge personnel based solely on sexual orientation, and the Department of Justice recently filed a brief that defends the constitutionality of DOMA. The government's defense of DOMA led to stinging criticism of President Obama by many prominent GLBT rights advocates.
[Note: A previous blog entry on Dissenting Justice analyzes the political rifts the brief caused. This essay and a subsequent one examine the legal content of the brief.]
DOMA 101
DOMA contains two major provisions. One section of the statute declares that states do not have to recognize same-sex marriages that other states consider legitimate. This part of the law purports to authorize states not to extend "full faith and credit" to same-sex marriages.
The other important section of DOMA adopts a heterosexual definition of "marriage" for federal programs. This part of the law denies same-sex couples any benefit (or obligation) that federal law extends to married couples, such as health care, joint-tax filing, etc.
The Brief
The government's brief argues that DOMA is constitutional in all respects. Surprisingly, the full faith and credit arguments have received the heaviest criticism -- even though this particular part of the statute is not really the most damaging to same-sex married couples. In the absence of DOMA, states that disapprove of same-sex marriage would probably still decline to recognize these marriages, which would lead to the same type of litigation that DOMA has already caused. Furthermore, it is likely that the Supreme Court -- not Congress -- will probably have the final say on what the Full Faith and Credit Clause requires of states in this setting.
The denial of federal benefits, however, is solely within the control of the federal government. According to the President's own previous statements, DOMA denies over 1,100 benefits to same-sex married couples. Even if individual states recognize same-sex marriages, DOMA still makes those marriages meaningless for purposes of federal law.
Standard Full Faith and Credit Analysis or Equating Same-Sex Marriage and Incest?
The Constitution requires states to give "Full Faith and Credit. . .to the public Acts, Records, and judicial Proceedings of every other State. . . ." Based largely on the Full Faith and Credit Clause, states traditionally have recognized marriages performed in other states.
The government's principal argument in defense of DOMA's full faith and credit provision contends that courts have allowed states to deny recognition of marriages from other states that violate their own "public policy." The relevance of the public policy exception to same-sex marriage has received an enormous amount of attention from legal scholars. Furthermore, the government's discussion of the exception represents a fairly routine way of analyzing the legal issues presented by the Full Faith and Credit Clause.
Despite its unexceptional nature, this section of the brief has inflamed many GLBT advocates because the Department of Justice cites to a series of cases that apply the public policy exception and allow states to deny recognition of certain marriages. These cases include an incestuous marriage between an uncle and his niece, a marriage involving a 16-year-old, and a marriage between first cousins.
John Aravosis at Americablog wrote a very critical analysis of this part of the brief which makes the following observations: "Holy cow. Obama invoked incest and people marrying children. . . .Then in the next paragraph, they argue that the incest and child rape cases therefore make DOMA constitutional. . . ."
These arguments, however, severely misrepresent the content of the brief. Certainly, the precedent deal with incest and age requirements for marriage, but these cases merely support the proposition that states can object to marriages that contravene their own public policy. They do not, however, turn on the general morality or desirability of the particular marriages, which were in fact legal in the "home" states. Instead, the cases conclude that where a public policy conflict exists, states can deny recognition without violating the Constitution. Finally, the brief never equates same-sex marriage with incest or "child rape" -- neither explicitly or implicitly.
These cases do not necessarily justify the nonrecognition of same-sex marriage by states, but they also do not substantiate the deepest public criticism of the brief by GLBT advocates -- that the Department of Justice brief compares same-sex marriage to incest and child rape. This argument is simply wrong.
Other scholars who advocate GLBT rights have taken a similar view. Nan Hunter, a law professor at Georgetown University Law Center and a longterm proponent of GLBT rights, describes the arguments by Aravosis and many other critics as "irresponsible attacks." Also, Chris Geidner, author of Law Dork, wrote an extensive essay that responds to the distortions Aravosis made and continues to make.
I enjoy reading Americablog, and have previously cited to it. I abhor and have criticized the homophobic linkage of same-sex marriage with incest and pedophilia. I was also one of the first bloggers to question Obama's commitment to GLBT rights, which I continue to do. Nevertheless, the DOMA brief, though awful in many respects, does not equate same-sex marriage with incest or child molestation.
Concluding Thoughts
Although many pro-GLBT advocates have unfairly criticized the Obama administration's defense of DOMA's full faith and credit provision, they are generally correct in condemning the government's argument that DOMA does not deny equal protection to same-sex married couples. In fact, if courts accept the equal protection analysis in the DOMA brief, this would represent a major setback for GLBT rights and would have negative implications beyond DOMA.
Accordingly, the Obama administration's equal protection position absolutely conflicts with his campaign promises -- although during yesterday's meeting, he downplayed any inherent conflict between his defense of DOMA and his "commitment to reversing this law." Obama's words, however, do not stand up to honest scrutiny. Alas, in the interest of space and time, I must defer my analysis of the equal protection arguments to another day. Stay tuned.
Showing posts with label department of justice. Show all posts
Showing posts with label department of justice. Show all posts
Tuesday, June 30, 2009
Friday, April 3, 2009
Another Alaska Criminal Case, Different Posture by DoJ
Let me first state the obvious: As a liberal constitutional law professor, I believe that the Department of Justice has done the "right thing" by seeking to overturn former Senator Ted Stevens' conviction for corruption charges. According to a statement by DoJ, prosecutors failed to give defense lawyers information they could have been used to impeach the testimony of a leading prosecution witness. I take the Due Process Clause seriously, regardless of the ideology, political affiliation or prior conduct of the persons whom it benefits.
As my colleague Professor Angela J. Davis (the criminal law scholar, not the 60s radical) demonstrates in Arbitrary Justice, her recent book published by Oxford University Press, prosecutors often fail to comply with due process norms. The situation is worse when defendants are poor or persons of color and when they lack the resources to mount a vigorous defense. Procedural violations potentially cause the most serious harms in the criminal justice system, where physical liberty and reputations are at stake.
Differing Approach by DoJ?
Although the Stevens prosecution took place during the Bush administration, Attorney General Eric Holder has decided to change direction and protect Stevens' due process rights. In another case, however, DoJ declined to change course, and instead adhered to the wrongheaded position of the Bush administration.
The other case is District Attorney's Office for the Third Judicial District v. Osborne. I analyzed Osborne earlier this year. The case involves a challenge to Alaska's refusal to give criminal defendants post-conviction access to DNA evidence. The inmate, who was convicted of rape, has secured pro bono legal counsel, and his attorneys have offered to pay for the DNA analysis. Alaska is one of six states where inmates do not have a post-conviction right to analyze DNA evidence, even if the analysis could point to their innocence. At the time of his criminal trial, prevailing technology did not allow the prosecution to link DNA samples to Osborne definitively. Today, however, the District Attorney concedes that an analysis would establish whether Osborne was indeed the source of the evidence.
During the Bush administration, DoJ filed an amicus brief in support of the State of Alaska. According to DoJ, the Constitution does not confer upon inmates a post-conviction right to analyze DNA evidence used to convict them. The government argued that if the Supreme Court were to recognize such a right, it would interfere with the states' ability to develop policy on the subject. This position, however, ignores the fact that Alaska is an outlier on the subject (only five other states deny the right the inmate seeks). And while states often complain that the pesky notion of due process interferes with their ability to govern, DoJ should not legitimize such outrageous claims.
As my colleague Professor Angela J. Davis (the criminal law scholar, not the 60s radical) demonstrates in Arbitrary Justice, her recent book published by Oxford University Press, prosecutors often fail to comply with due process norms. The situation is worse when defendants are poor or persons of color and when they lack the resources to mount a vigorous defense. Procedural violations potentially cause the most serious harms in the criminal justice system, where physical liberty and reputations are at stake.
Differing Approach by DoJ?
Although the Stevens prosecution took place during the Bush administration, Attorney General Eric Holder has decided to change direction and protect Stevens' due process rights. In another case, however, DoJ declined to change course, and instead adhered to the wrongheaded position of the Bush administration.
The other case is District Attorney's Office for the Third Judicial District v. Osborne. I analyzed Osborne earlier this year. The case involves a challenge to Alaska's refusal to give criminal defendants post-conviction access to DNA evidence. The inmate, who was convicted of rape, has secured pro bono legal counsel, and his attorneys have offered to pay for the DNA analysis. Alaska is one of six states where inmates do not have a post-conviction right to analyze DNA evidence, even if the analysis could point to their innocence. At the time of his criminal trial, prevailing technology did not allow the prosecution to link DNA samples to Osborne definitively. Today, however, the District Attorney concedes that an analysis would establish whether Osborne was indeed the source of the evidence.
During the Bush administration, DoJ filed an amicus brief in support of the State of Alaska. According to DoJ, the Constitution does not confer upon inmates a post-conviction right to analyze DNA evidence used to convict them. The government argued that if the Supreme Court were to recognize such a right, it would interfere with the states' ability to develop policy on the subject. This position, however, ignores the fact that Alaska is an outlier on the subject (only five other states deny the right the inmate seeks). And while states often complain that the pesky notion of due process interferes with their ability to govern, DoJ should not legitimize such outrageous claims.
The Obama administration, however, chose to defend Bush's position in the case during oral arguments before the Supreme Court earlier this year. Several liberal commentators justified the Obama administration's decision by explaining that incoming Solicitors General often "respect" the opinions of the previous administration in pending cases. But due process rights are so important that DoJ could have easily justified a refusal to defend Bush's position.
Holder's decision to seek dismissal of Stevens' conviction will remedy misconduct that took place within DoJ (even though it occurred prior to his leadership of the agency). And while DoJ, by contrast, did not prosecute Osborne, the agency lost a valuable opportunity to advocate the strengthening of due process rights because it refused to the abandon the "failed policies of the past." Due process rights are equally important for popular U.S. Senators and for indigent inmates seeking to prove their innocence.
Wednesday, April 1, 2009
DoJ Seeks to Dismiss Case Against Former Alaska Senator Ted Stevens
In an embarrassing move, the Department of Justice has asked a federal judge to overturn a conviction it only recently secured against former Alaska Senator Ted Stevens. DoJ apparently failed to notify Stevens' defense counsel that a prosecution witness' testimony conflicted with statements he made to DoJ prior to the trial. Prosecutors have a constitutional obligation to disclose exculpatory information to the defense.
Friday, March 13, 2009
Change = Same?
Today, the Department of Justice announced that it would no longer rely upon a individual's "enemy combatant" status in order to justify indefinite detention by the President. Instead it will advance arguments rooted in the international "law of war" and the Authorization for Use of Military Force passed by Congress.
Although discarding the "enemy combatant" label makes for great political soundbite, at present, it does not materially alter the government's treatment of Al Qaeda members and other terrorism suspects, nor has it changed the government's legal position in lawsuits brought by former detainees alleging maltreatment by the government.
The government described its rhetorical shift in a formal statement and in a legal brief submitted in opposition to a lawsuit against Donald Rumsfeld and other officials by former detainees. The plaintiffs allege that they were tortured and deprived of religious freedom. DOJ argues that the individuals have no enforceable rights against the United States and that even if they had such rights, the defendants are immune from liability.
The government will no longer claim broad authority over "enemy combatants," but will instead use a functional test to determine whether it can indefinitely detain suspects and deprive them of rights that they might otherwise possess. A closer look at the criteria, however, shows very little difference between the "new" standard and the old one used by the Bush administration.
The SCOTUS blog has the details:
PS: Bush also advanced arguments based on the law of war and the AUMF. Also, it does not appear that DOJ rejects Bush's argument that Article II confers detention authority upon the President; instead, it seems that it has simply declined to assert this argument.
Although discarding the "enemy combatant" label makes for great political soundbite, at present, it does not materially alter the government's treatment of Al Qaeda members and other terrorism suspects, nor has it changed the government's legal position in lawsuits brought by former detainees alleging maltreatment by the government.
The government described its rhetorical shift in a formal statement and in a legal brief submitted in opposition to a lawsuit against Donald Rumsfeld and other officials by former detainees. The plaintiffs allege that they were tortured and deprived of religious freedom. DOJ argues that the individuals have no enforceable rights against the United States and that even if they had such rights, the defendants are immune from liability.
The government will no longer claim broad authority over "enemy combatants," but will instead use a functional test to determine whether it can indefinitely detain suspects and deprive them of rights that they might otherwise possess. A closer look at the criteria, however, shows very little difference between the "new" standard and the old one used by the Bush administration.
The SCOTUS blog has the details:
Here is how [the Bush] Administration defined ["enemy combatant"]: "At a minimum, the President’s power to detain includes the ability to detain as enemy combatant those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies. This includes individuals who were part of or directly supporting Taliban, al-Qaida, or associated forces, that are engaged in hostilities against the United States, its coalition partners or allies. This also includes any persons who have committed a belligerent act or supported hostilities in aid of enemy forces."SCOTUS also sets forth out the "differences" between Bush and Obama on this issue:
Here is the definition of detention authority, without the label "enemy combatant," that the Obama Administration outlined Friday: "The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the united States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces."
First, the new version requires proof of “substantial” support of Taliban orThe Center for Constitutional Rights, which represents plaintiffs in the litigation, does not mince words. CCR argues that DOJ has:
Al-Qaeda forces, while the former version required proof of “direct” support of such forces.
Second, the new version requires proof of “substantial” support of forces (other than Taliban or Al-Qaeda) engaged in hostilities against the U.S. and its coalition partners, while the former version only required “support.”
And, third, the new version applies to a person who “directly” supported hositilities to aid enemy armed forces, while the former version only required “support” of such hostilities, and did not include the word “armed” as to enemy forces who had been supported.
[A]dopted almost the same standard the Bush administration used to detain peopleThis sounds like the "extraordinary rendition"/"rendition" debate.
without charge – with one change, the addition of the word “substantially”
before the word “supported.” This is really a case of old wine in new bottles.
PS: Bush also advanced arguments based on the law of war and the AUMF. Also, it does not appear that DOJ rejects Bush's argument that Article II confers detention authority upon the President; instead, it seems that it has simply declined to assert this argument.
Saturday, March 7, 2009
NIMBY Politics and Guantanamo Bay Detainees
According to the Washington Post, the Obama administration may transfer some Guantanamo Bay Detainees to federal prisons in New York and Virginia to stand trial for acts of terrorism. The plan would undoubtedly set off very passionate NIMBY ("not in my back yard") politics. In the past, however, the United States has prosecuted terrorism suspects in New York and Virginia, and some of those individuals are currently serving sentences at a high security prison in Colorado.
Federal officials from Homeland Security, the FBI, CIA, Department of Justice, and the Department of State will review files of the remaining 241 Guantanamo Bay detainees. The review process will determine "whether to prosecute inmates in federal court, transfer them home or to third countries, or possibly resettle some of them in the United States."
Human Rights Groups Will Probably Get a "Mixed Bag"
Human rights groups have insisted that individuals detained in the war against terrorism receive access to ordinary civilian courts. They have challenged the use of military courts and indefinite detention of suspects.
While members of the Obama administration have expressed a preference for using federal courts when possible, they have not eliminated the possibility of creating "a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." "A new system of detention" is a vague concept, but it does not sound like an idea that complies with the demands for justice that human rights groups have made with respect to Guantanamo Bay.
Federal officials from Homeland Security, the FBI, CIA, Department of Justice, and the Department of State will review files of the remaining 241 Guantanamo Bay detainees. The review process will determine "whether to prosecute inmates in federal court, transfer them home or to third countries, or possibly resettle some of them in the United States."
Human Rights Groups Will Probably Get a "Mixed Bag"
Human rights groups have insisted that individuals detained in the war against terrorism receive access to ordinary civilian courts. They have challenged the use of military courts and indefinite detention of suspects.
While members of the Obama administration have expressed a preference for using federal courts when possible, they have not eliminated the possibility of creating "a new system of detention for cases where there is not enough evidence to prosecute someone in the regular courts, but the suspect is deemed too dangerous to release." "A new system of detention" is a vague concept, but it does not sound like an idea that complies with the demands for justice that human rights groups have made with respect to Guantanamo Bay.
Monday, March 2, 2009
Legal Showdown Looming Over Don't Ask, Don't Tell: What Will the Obama Administration Do?
Professor Nan Hunter has an interesting post on her blog, Hunter of Justice, which discusses a pending LGBT rights case. The case involves a challenge to the military's discharge of a woman who engaged in "homosexual conduct." The Court of Appeals for the Ninth Circuit held that the military could not discharge the individual unless it showed that "her conduct hurt morale or jeopardized another government interest." The case will likely present the first opportunity for the Obama administration to make policy on LGBT rights issues.
As Hunter observes: "[T]he Air Force has two choices. It can either let the case be remanded to the trial court, where proceedings will start again, or it can seek to stop that from happening by filing a petition for certiorari in the U.S. Supreme Court."
Although DOJ must defend the government, "DOJ has room to do the right thing. The decision in Witt did not declare the Don't Ask Don't Tell statute invalid. Instead, Major Witt's ACLU lawyers sought to put the Defense Department to the test of actually proving that her presence was harmful, rather than being able to simply assume that to be the case."
My Take
DOJ lawyers could petition the Supreme Court to invalidate the Ninth Circuit's "hurt morale or jeopardized another government interest" test as too strenuous and invasive of military autonomy. If so, the Obama administration's posture on LGBT issues will replicate the arguments of previous administrations that have demanded (and obtained) deference in this area of law.
Because so much of what DOJ does is driven by litigation strategy and a desire to win pending and future cases, I can easily imagine the government seeking high court review. If the government does not challenge the standard in the Supreme Court and does not settle or drop the case, then DOJ must return to the District Court and demonstrate that homosexual conduct harms or jeopardizes the military. This argument, however, would provoke very passionate criticism.
Whatever path the government pursues, I agree with Hunter; this case will help determine "whether the Obama Justice Department will analyze lgbt rights cases through a different lens than their predecessors." Obama has promised to seek the repeal of Don't Ask Don't Tell, but he says that the military should "study" the issue first. This case may require his administration to take a concrete position on the subject earlier than he had anticipated.
As Hunter observes: "[T]he Air Force has two choices. It can either let the case be remanded to the trial court, where proceedings will start again, or it can seek to stop that from happening by filing a petition for certiorari in the U.S. Supreme Court."
Although DOJ must defend the government, "DOJ has room to do the right thing. The decision in Witt did not declare the Don't Ask Don't Tell statute invalid. Instead, Major Witt's ACLU lawyers sought to put the Defense Department to the test of actually proving that her presence was harmful, rather than being able to simply assume that to be the case."
My Take
DOJ lawyers could petition the Supreme Court to invalidate the Ninth Circuit's "hurt morale or jeopardized another government interest" test as too strenuous and invasive of military autonomy. If so, the Obama administration's posture on LGBT issues will replicate the arguments of previous administrations that have demanded (and obtained) deference in this area of law.
Because so much of what DOJ does is driven by litigation strategy and a desire to win pending and future cases, I can easily imagine the government seeking high court review. If the government does not challenge the standard in the Supreme Court and does not settle or drop the case, then DOJ must return to the District Court and demonstrate that homosexual conduct harms or jeopardizes the military. This argument, however, would provoke very passionate criticism.
Whatever path the government pursues, I agree with Hunter; this case will help determine "whether the Obama Justice Department will analyze lgbt rights cases through a different lens than their predecessors." Obama has promised to seek the repeal of Don't Ask Don't Tell, but he says that the military should "study" the issue first. This case may require his administration to take a concrete position on the subject earlier than he had anticipated.
Sunday, February 22, 2009
Remember the Drama Over Those Missing White House Emails?
On another blog, someone questioned my liberal credentials because I methodically point out the blatant inconsistencies in the LOUDNESS of liberal criticism of Bush's policies compared with liberal silence or defensiveness when Obama replicates these same practices. But with new material emerging on a daily basis, I find it hard to let go of this role.
Bush's lack of transparency made him less than human to many liberals. [Editor's Note: For the literalists, that was sarcasm.] One issue that provoked liberal outcry during his administration centered around the loss of millions of White House emails. Although the Bush administration reported that it recovered and made public many of the emails, two advocacy groups that have sued the government say that the White House has not done enough. Recently, however, the Department of Justice decided to maintain Bush's position that the court should dismiss the lawsuits.
The Department of Justice wants to win cases. It represents the government. It is not "evil" for lawyers to argue for the dismissal of lawsuits against their clients. Lawyers have a natural and fixed desire -- and an ethical obligation -- to provide zealous advocacy for their clients. Accordingly, I do not disagree with the DOJ taking a firm stand defending the White House against the email litigation.
Nevertheless, if McCain had continued along this path, we would have heard numerous cries that he was "more of the same." Now, we only hear scattered criticism. What justifies the divergent reactions?
Bush's lack of transparency made him less than human to many liberals. [Editor's Note: For the literalists, that was sarcasm.] One issue that provoked liberal outcry during his administration centered around the loss of millions of White House emails. Although the Bush administration reported that it recovered and made public many of the emails, two advocacy groups that have sued the government say that the White House has not done enough. Recently, however, the Department of Justice decided to maintain Bush's position that the court should dismiss the lawsuits.
The Department of Justice wants to win cases. It represents the government. It is not "evil" for lawyers to argue for the dismissal of lawsuits against their clients. Lawyers have a natural and fixed desire -- and an ethical obligation -- to provide zealous advocacy for their clients. Accordingly, I do not disagree with the DOJ taking a firm stand defending the White House against the email litigation.
Nevertheless, if McCain had continued along this path, we would have heard numerous cries that he was "more of the same." Now, we only hear scattered criticism. What justifies the divergent reactions?
BREAKING NEWS from the Washington Times: When Eric Holder Was In Private Practice, He Did His Job!
The Washington Times has published an interesting article which reports that Attorney General Eric Holder did his job while he was a lawyer in private practice. Recently, Holder sparked a minor (if you disagree with the adjective, please feel free to choose your own) controversy, when he said that the country was a "nation of cowards" regarding issues of race.
The title of the Washington Times article -- "Holder Litigated Against Rights Claims" -- is almost as provocative as Holder's comments. The article reports that Holder "found himself on both sides of the courtroom on civil rights cases during his eight-year tenure at a high-profile Washington law firm." But the fact that litigators represent plaintiffs and defendants on the same issues is hardly newsworthy. Even in the area of criminal law, prosecutors later become defense attorneys or vice versa.
But the article's focus on Holder's representation of civil rights defendants seems particularly strange in light of the following fact: The Department of Justice, which Holder now runs, also represents defendants in discrimination claims. As the official lawyer for the United States, DOJ defends the federal government in all litigation, including cases alleging claims of discrimination. DOJ also defends the government in cases alleging deprivations of constitutional rights (including the rights to equal protection and liberty). Apparently, Holder's prior work prepares him for the complexity of his current job.
The article also states that the number of civil rights cases that went to a final verdict dropped during Holder's prior four-year stint at DOJ. But a number of reasons could have led to the decline -- including that the government settled more cases or that courts disposed of more cases on pre-trial motions (e.g., summary judgment or dismissal).
I was also struck by the inclusion of commentary from a woman whom the article reports was a plaintiff in a civil rights case against MBNA. The article reports that MBNA hired Holder to "fight off" (I have this image of Holder in fencing gear) the discrimination claim. The plaintiff in the case says she hoped that Holder did not get confirmed as Attorney General. The article does not present any of the facts of her case; it simply reports that the court ruled in favor of the company. But many factors, including the weakness of the plaintiff's case, could explain why she lost. Believing in the vigorous enforcement of civil rights does not require a concomitant belief that civil rights plaintiffs should always prevail.
Finally, the article reports that Holder also defended a bank against allegations that it provided "segregated" services to blacks. The court granted summary judgment for the bank. Summary judgment means that the undisputed facts establish victory for plaintiff or the defendant without the necessity of proceeding to trial. Although the article does not provide any facts from the case, proving race discrimination in civil rights litigation is usually very difficult. Unless the plaintiffs had pretty damning evidence, their claim of racial discrimination was doomed from the start, due in large part to conservative civil rights jurisprudence.
Final Word
In classic Dissenting Justice form, let's cut to the chase: I believe the article attempts to undercut Holder's inflammatory comments by portraying him as being on both sides of the fence with respect to racial justice. But it does a pretty poor job in this regard. Lawyers often represent defendants and plaintiffs on the same issues, and (more importantly) DOJ defends the United States against discrimination claims.
Furthermore, it's pretty difficult to draw implications about a lawyer's ideology or commitment to an issue simply because he or she represented a particular party to a case. Although lawyers often take cases for political or ideological reasons, most of the time, a case is just a case. Holder worked at a large law firm. I imagine that his representation in most cases did not reflect upon his own political values. Instead, he was just doing his job. For this reason, the comments of the civil rights plaintiff who did not want the Senate to confirm Holder seem misplaced.
Finally, I have not yet commented on the "cowards" issue because I have a natural aversion to drama, but I feel the need to address the matter briefly. Was Holder's statement inflammatory? You betcha (thanks, Sarah - I like this phrase). But underneath the surface, I thought he confirmed, even if for different reasons, what conservatives and moderates have said for many years: that "political correctness" has made people afraid to talk about race (or sex or anything worthy of discussion) for fear of being called a racist. Outside of the colorful nature of the comment, isn't it true that many people are indeed afraid of talking about race? If not - then go for it!
The title of the Washington Times article -- "Holder Litigated Against Rights Claims" -- is almost as provocative as Holder's comments. The article reports that Holder "found himself on both sides of the courtroom on civil rights cases during his eight-year tenure at a high-profile Washington law firm." But the fact that litigators represent plaintiffs and defendants on the same issues is hardly newsworthy. Even in the area of criminal law, prosecutors later become defense attorneys or vice versa.
But the article's focus on Holder's representation of civil rights defendants seems particularly strange in light of the following fact: The Department of Justice, which Holder now runs, also represents defendants in discrimination claims. As the official lawyer for the United States, DOJ defends the federal government in all litigation, including cases alleging claims of discrimination. DOJ also defends the government in cases alleging deprivations of constitutional rights (including the rights to equal protection and liberty). Apparently, Holder's prior work prepares him for the complexity of his current job.
The article also states that the number of civil rights cases that went to a final verdict dropped during Holder's prior four-year stint at DOJ. But a number of reasons could have led to the decline -- including that the government settled more cases or that courts disposed of more cases on pre-trial motions (e.g., summary judgment or dismissal).
I was also struck by the inclusion of commentary from a woman whom the article reports was a plaintiff in a civil rights case against MBNA. The article reports that MBNA hired Holder to "fight off" (I have this image of Holder in fencing gear) the discrimination claim. The plaintiff in the case says she hoped that Holder did not get confirmed as Attorney General. The article does not present any of the facts of her case; it simply reports that the court ruled in favor of the company. But many factors, including the weakness of the plaintiff's case, could explain why she lost. Believing in the vigorous enforcement of civil rights does not require a concomitant belief that civil rights plaintiffs should always prevail.
Finally, the article reports that Holder also defended a bank against allegations that it provided "segregated" services to blacks. The court granted summary judgment for the bank. Summary judgment means that the undisputed facts establish victory for plaintiff or the defendant without the necessity of proceeding to trial. Although the article does not provide any facts from the case, proving race discrimination in civil rights litigation is usually very difficult. Unless the plaintiffs had pretty damning evidence, their claim of racial discrimination was doomed from the start, due in large part to conservative civil rights jurisprudence.
Final Word
In classic Dissenting Justice form, let's cut to the chase: I believe the article attempts to undercut Holder's inflammatory comments by portraying him as being on both sides of the fence with respect to racial justice. But it does a pretty poor job in this regard. Lawyers often represent defendants and plaintiffs on the same issues, and (more importantly) DOJ defends the United States against discrimination claims.
Furthermore, it's pretty difficult to draw implications about a lawyer's ideology or commitment to an issue simply because he or she represented a particular party to a case. Although lawyers often take cases for political or ideological reasons, most of the time, a case is just a case. Holder worked at a large law firm. I imagine that his representation in most cases did not reflect upon his own political values. Instead, he was just doing his job. For this reason, the comments of the civil rights plaintiff who did not want the Senate to confirm Holder seem misplaced.
Finally, I have not yet commented on the "cowards" issue because I have a natural aversion to drama, but I feel the need to address the matter briefly. Was Holder's statement inflammatory? You betcha (thanks, Sarah - I like this phrase). But underneath the surface, I thought he confirmed, even if for different reasons, what conservatives and moderates have said for many years: that "political correctness" has made people afraid to talk about race (or sex or anything worthy of discussion) for fear of being called a racist. Outside of the colorful nature of the comment, isn't it true that many people are indeed afraid of talking about race? If not - then go for it!
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