Gay rights and Republican lawyers: l’affaire continues

by on January 25, 2010  •  In Uncategorized

The Prop 8 trial is expected to end this week, possibly as early as Wednesday. What has been treated in the media as Ted Olson Presents will go on hiatus until final arguments, which Judge Walker has said he wants to hear after he has had a chance to review the evidence. Meanwhile, Olson had a pretty good week back at the Supreme Court, where he was the winning lawyer in Citizens United v. Federal Election Commission, the case that decimated what passed for a campaign finance reform law.

But long before Olson will be before the Supreme Court as a gay rights lawyer, the Justices will hear from the two other high quality and highly paid stars in the conservative lawyer firmament. Hastings Law School has hired Gregory Garre and Maureen Mahoney to defend its anti-discrimination policy against the challenge against it by the Christian Legal Society. CLS asserts that it has an expressive association right to exclude gay students, and Hastings argues that it has a right to deny official recognition if a group is not open to all students. 

Both Garre and Mahoney are, like Olson, superb advocates. But their role in the CLS case, like Olson's in Perry, illustrates the ways in which public interest litigation is becoming less and less distinct from ordinary corporate practice. Big firms (sometimes acting pro bono, although not in Perry or CLS) are being brought in to litigate important and high visibility cases on behalf of the public interest law groups that function as co-counsel or sponsors of the litigation. What's wrong with this picture?  Not anything, necessarily, but it surely marks a radical change from a professional landscape in which the outsider lawyer carried the case all the way through appellate stages, including to the Supreme Court.

Part of the reason is the increasing specialization of legal work, manifest in the growth of a small elite group of Supreme Court practitioners. Part of it is the sharp, almost even split among the Justices along ideological grounds in almost every area of constitutional law. And part of the reason is surely that conservative Justices currently hold the upper hand in that split, thereby creating a special appeal for having a lawyer well known for her or his conservative credentials argue your case. 

In the CLS case, it is easy to see why Hastings chose Garre and Mahoney (both partners at Latham Watkins). Both Garre, who was Solicitor General at the very end of the Bush 43 presidency, and  Mahoney, who successfully represented the University of Michigan Law School in defending its affirmative action policy in Grutter v. Bollinger, are regarded as excellent Supreme Court advocates. Their biographies bear a stunning resemblance to that of Chief Justice Roberts: all were former Rehnquist clerks and appointees in Republican Justice Departments. Mahoney was also a Bush 43 nominee for a federal judgeship, but was not confirmed.

I suppose the irony here is that "hired gun" no longer just means that a lawyer who once sought to do good will represent tobacco companies, investment banks, or big pharma. Apparently, it also means that Republican true believers will represent queers and the people who love them. At least if the price is right.



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