Ken Cuccinelli

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.