One recent Big Conservative Flap saw King and Spalding, the giant Atlanta-based law firm, walk off the job of defending the Defense of Marriage Act, and getting fired from its job of attacking health care reform by, the Attorney General of Virginia. Cuccinelli is quoted as saying:
“King & Spalding’s willingness to drop a client, the U.S. House of Representatives, in connection with the lawsuit challenging the Defense of Marriage Act (DOMA) was such an obsequious act of weakness that I feel compelled to end your legal association with Virginia so that there is no chance that one of my legal clients will be put in the embarrassing and difficult situation like the client you walked away from, the House of Representatives,” Cuccinelli wrote to firm partner Joseph Lynch in a letter obtained by the Washington Examiner.
This is not a statement intended to convey facts. It’s diplomat-speak, intended to send a message. Cuccinelli is telling the managing partners of law firms that if they want to get legal work from the Attorney General of Virginia, they and everyone who works for them have to truly believe in all of Cuccinelli’s political positions. That should be a problem: big law firms are full of smart people, and lots of smart people aren’t homophobes, misogynists, or Rushdoonyites. That leaves the State of Virginia with a small subset of smart lawyers, and a big group of average or worse lawyers, facing the smart lawyers. It doesn’t matter. Cuccinelli has figured out that in today’s judicial climate, the average guys will still win.
Lawyers are used to advocating for positions they may not personally hold. Indeed, the function of lawyers in a competently run society is to make the best argument they can for the position of their clients, whether they agree with it or not. Sensible lawyers advise their clients of their views of the case and how it should be managed, but in the end, the views of the client control. The theory is that both sides do this, and the matter is decided by a neutral smart judge.
Of course, no one believes that any more. No one really believes that an important case will be decided against the long-term interests of the Corporate Persons who dominate our society. That is especially true at the Supreme Court, which just last week made it clear that the interests of human beings must fall to the demands of efficient operation of Corporate Persons. It’s also true of most Circuit Courts. For example, the Eighth Circuit thinks that the interest of NFL owners must be protected, despite a blistering dissent, pointing out that the Owners had failed to show any injury at all. The idea that courts favor the hyper-rich is so common that it is routinely included in ESPN’s reporting.
Of course, it was never the case that judges are entirely neutral. In close cases, it is reasonable to assume that the judge’s personal views will give the edge to one or the other party. The goal of one lawyer is to get the argument close enough for the judge’s outlook to be decisive, and for the other, the goal is to make the court think that the case is so clear that the judge would be embarrassed to rule for the other side. That used to be possible, but after Bush v. Gore, 531 U.S. 98 (2000), every judge knows there is no reason to be embarrassed by any argument, no matter how foolish.
I wouldn’t even call this intellectual dishonesty. Scalia and Cuccinelli do not accept the attitude our legal forebears had about the nature of the world. The old legal tradition was built on the idea that societies evolve, that oppression by the powerful against the powerless would be mediated by society through laws, and that in due course the misery of the powerless would be relieved. Legal tradition accommodated that framework both in case law, and by generous interpretation and enforcement of statutes regulating the actions of the powerful.
Scalia and the other conservatives who dominate the Supreme Court, and powerful people like Cuccinelli, and their hyper-wealthy contributors, among others, don’t believe in evolution. They believe that this legal tradition is garbage and should be shoved down the oubliette in the new castle of law they are building. New Law is based on two principals.
1. All rules must be interpreted in the way that increases economic efficiency, no matter the impact on individuals.
2. The prejudices and bigotry of our ancestors cannot be displaced by courts or legislatures.
While they erect this new legal edifice, they are forced to use the old forms of law, cases and rules of statutory construction, so they have to distort the old cases and torture the old rules until they break out of the confines of that tradition. It won’t take long for them to create a whole new environment of cases and rules. The new generation of lawyers never knew any other tradition, and most boomer lawyers bought into the new tradition because it was profitable, or necessary to survive.
Soon, we won’t even remember the olden days of liberal democracy.




23 Comments





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Masaccio,
Thank you for this post. We the people need to stay on top of this and push against it at every chance. There is absolutely no equality in the law if this stands as it is and if the Supreme Court says there is, then we the people should have the same rights and affords that Corporations do with tax laws, or non-tax paying exemptions. We also should have a closer ear to our Congress than the Corps do, however while there is unfettered money flowing around the world to influence them it will not happen until we the citizens become somewhat anti-Corporate.
And yet, sadly, too many otherwise smart people are most definitely homophobes, misogynists, or Rushdoonyites. If intelligence alone were enough to ensure wisdom and goodness in human beings, we wouldn’t have so many problems in the world.
;-)
Twooph!
You can’t even consult our DOJ on these type issues because they are totally wrapped up in the Chamber of Commerce and can only prosecute the little people for supposed wrongs. They look the other way while Corporates and the Banks blatantly walk all over the laws of the land.
Cooch is evil.
That is all.
Maybe some real leaders, people with power who aren’t part of the Parasites’ Club, will still emerge before it’s too late.
Lawyers have one purpose: To make lies appear true. Occasionally, a rare act justice slips through, but for the most part Dershowitz’s Theory of Testalying still holds true ( and that ain’t a lie)
Subservience is not respect.
‘The prejudices and bigotry of our ancestors cannot be displaced by courts or legislatures.”
Tbat is a sad commentary and true. Further logic and reasonabless no longer matter. The same in politics, the same in the courts.
<stroEvery law and court decision must be rewritten or reinterpreted to conform to the new reality: the corps rule without let or hinderance. Corpses have all of the rights of citizens but none of the obligations. It really doesn’t matter who controls the congress or the wh, because eventually all law will reflect that truth.
Our state is definitely competing in the how ridiculous can we become competition.
My son has a number of economically disadvantaged children in the after care program(5-12 year olds) he works at. The state no longer allows paying for these children to participate 5 days a week. That’s right the same nutballs who insisted that poor people need to work to receive welfare benefits are now insisting “they” shouldn’t have to pay to place children incapable of caring for themselves in a safe environment. The stupid in this state sometimes is positively shameful.
“Virginia does not shy away from hiring outside counsel because they may have ongoing professional relationships with people or entities, or on behalf of causes that I, or my office, or Virginia as a whole may not support. But it is crucial for us to be able to trust and rely on the fact that our outside counsel will not desert Virginia due to pressure by an outside group or groups. Virginia seeks firms of commitment, courage, strength and toughness, and unfortunately, what the world has learned of King & Spalding, is that your firm utterly lacks such qualities.”
Just a short note on the 8th Circuit and Brady vs. NFL:
I caution against reading too much into the temporary stay of Judge Nelson’s injunction to end the lock that 2 Bush appointees granted Thursday evening. This week, the appellate panel will rule on a broader stay, covering from now until they hear arguments on the injunction, itself. Then, we will probably see the judges tip their hands one way or another as we get to read their ruling.
The bar for a stay is set appropriately high. The appellate panel will have to find that the league’s arguments are strong (something more than 50% likely to ultimately prevail), the potential damage to the owners is real and more serious than those of the players, and that the potential damage to the public interest is also more to the owners’ side.
The owners content that if forced to return to operations now, then this will result in unrestricted free agency for all players and teams having no salary caps essentially forever. This, in turn, would negatively impact the equitable opportunity of teams to recruit players and thus quality of play, subsequently damaging professional football. While this is possible, it is by no means certain as the last 20 years demonstrates. To assert that this will happen in the time it takes to adjudicate or settle the present antitrust case is, in a word, ludicrous.
The players take the more likely and reasonable, short view. Players will lose out on the ability to train and demonstrate their talents (impacting personal income in a way difficult to calculate and reward via damages). The pre-season would almost certainly be curtailed including the possible cancellation of pre-season games. Businesses, individuals, and even charities related to NFL operations will lose income. A representive of the league, itself, said in one interview it will lose ~$1B in revenue if the lockout continues through the summer.
It will literally take a Bush v. Gore level of horrible ruling to find in favor of the league, both with respect to the stay and the ultimate injunction appeal. In this case, there’s also a tremendous amount of jurisprudence that will to be set aside. Keep in mind, too, that SCOTUS just found against the NFL last year in American Needle. While there’s certainly a general love in our judicial system for billionaires and big business, it’s a lot less when the big business is a monopoly.
Well, not so short note, but, heh.
Book Salon up with Antonia Juhasz’s Black Tide: The Devastating Impact of the Gulf Oil Spill hosted by Dr Kirk Murphy
Let’s STOP calling these thugs “conservatives” already and start calling them what they really are REACTIONARIES and friggin dangerous ones at that, not just cranks.
As you point out, lawyers have a professional obligation zealously to represent their client regardless of which, if any, of their opinions or actions they agree with. The rules of practice prohibit associating a client’s conduct with the lawyer’s. To do so would be inaccurate. More importantly, it would serve to deny the unpopular adequate representation, which would prevent them from enforcing their rights in and out of court.
Cuccinelli is not very inventively, and quite self-destructively, rehashing an old Gingrich-DeLay-Armey theme that they used against DC’s powerhouse lobbyists. They demanded not only that any lobbyist coming to them be Republican, they demanded that lobbying firms employ only Republicans. Otherwise, lobbyists would be treated like a salesman showing up at a Chevy factory driving a Ford.
He is exhibiting the Right’s addiction to reducing all arguments – as well as presidential candidates – to the absurd.
I agree with your analysis on the burden on the NFL. I merely point out that the District Court held a hearing. The Players showed that they had a strong chance of success on the merits, and that they would be injured more than the owners. As I read the commentary, and I haven’t seen the order, the District Court found that the owners would suffer no loss if the lock-out was ended.
The Owners started in on compliance. On that record, the Appeals Court was asked to roil the waters by staying the injunction on appeal, insuring that the draft would take place in an uproar. There was no showing of injury to the Owners.
I think that decision was wrongful to everyone in the sport, but I note that it favored the pasty-faced pudgy billionaires over the reasonably well-paid gladiators.
Of course, no lawyer is required to take a case, except in rare situations. The time to decide is before you take the case, and here King & Spalding failed. They did their best to cover the error, but it was a mistake.
masaccio,
The movement conservatives will not succeed. They are a dying echo of a long past that believed human beings had only that value and purpose given them by those who ruled over them. For the moment, these conservatives, who present themselves as corporate monarchists, seem to be in ascendance. Even so, history has shown us again and again that rulers only rule at the will of the people.
Democracy is not a type of politics. It is the belief that to be fully human is to live in a manner that treats every single human being as fundamentally equal to oneself in all the ways that matter. It is the belief that this simple act, the act of seeing the other as coequal with oneself, is enough to collectively establish and maintain those enduring forms of social organization – government, education, the family – that we call society. Hopefully, we have learned enough as a species to finally understand that democracy is the apex of high civilization.
I will not submit to the conservative movement’s madness. No rational and compassionate human being should. Not now. Not ever.
During the darkest days of Nixon, then Reagan and Bush, I held tight to the belief that there were two institutions that would protect us: the courts and the press.
It is heart-breaking — and terrifying — to see that both of these “last outposts” of the rule of law and civilization have almost completely vanished.
Fixed it for ya.