Al-Qaeda, Yes; DOMA, No

[Geee]

National Review:

The modern-day John Adams brigade down at King & Spalding has finally found a client too unpopular to merit representation: the American people. That is exactly the same conclusion drawn by Eric Holder’s Justice Department.

Like the DOJ, the Atlanta-based white-shoe law firm asks “How high?” when left-wing agitators tell it to jump. In this instance, the agitators were gay-rights activists. They were in a snit because K&S — in particular, K&S partner Paul Clement, the former Bush-administration solicitor general — agreed to represent the American people in litigation involving challenges to the Defense of Marriage Act (DOMA). DOMA denies federal recognition of same-sex marriage. It was reluctantly signed by President Clinton in the stretch run of his 1996 reelection campaign, huge congressional majorities having acted out of concern that leftist judges would impose gay marriage on a very unwilling public.


Defending DOMA against court challenges is supposed to be the Justice Department’s job. As Attorney General Holder has declared, DOJ has “a longstanding practice of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense.” But with Holder in charge, that claim is fraudulent.

Under Holder’s stewardship, duly enacted statutes are deemed infirm when the Left disapproves of them — despite powerful constitutional arguments to be made in their behalf. When Holder was Clinton’s deputy attorney general, DOJ refused to defend a congressional statute that had reversed the Miranda decision. There were well-grounded arguments in the statute’s favor — the Supreme Court had many times denied that its judicially manufactured Miranda rule had constitutional pedigree, and it is black-letter law that Congress may reverse judicial decisions not rooted in the Constitution. But no matter. For the Left, Miranda is a sacred cow, a cornerstone of its criminal-rights revolution of the 1960s and 1970s. To protect it, Holder’s minions abandoned the statute — taking the side of a convicted bank robber to do so.