Thurgood Marshall is best known as a liberal hero for fashioning the litigation strategy that led to the Supreme Court’s landmark decision in Brown v. Board of Education (1954) outlawing racial segregation in public schools. Interestingly, Marshall’s best known argument a decade later as U.S. solicitor general is one that would have endeared him to conservatives: his failed effort in 1966 to dissuade the justices from adopting the Miranda guidelines on police interrogation of criminal suspects.
Marshall’s personal approval of Miranda can be seen in his votes during 24 years on the Supreme Court to reaffirm and in some instances extend the decision. As a government lawyer, however, Marshall had an ethical obligation to argue the government’s position, not his own.
Over the past weeks, Liz Cheney has drawn attention to herself and her organization Keep America Safe for a drive-by video attack on current Justice Department officials who, as private attorneys, represented or took positions in support of the rights of Guantanamo detainees. The attack has been vehemently criticized by lawyers across the ideological spectrum, including prominent conservatives from past Republican administrations, for demonizing attorneys for upholding the profession’s ethical obligation to represent the otherwise unrepresented.
But the video also fundamentally disrespects the role of the government lawyer. By depicting the Justice Department officials as “the al Qaeda 7,” the video suggests that they will subvert government policies and debase their oaths of office by using their influence to tilt the government’s legal position in favor of an avowed terrorist organization at war with the United States.
Liz Cheney and her father, former vice president Dick Cheney, have some familiarity with government lawyers who substitute their own views of the law for what the law actually says. John Yoo is one, according to the Justice Department’s inspector general, which found that the former deputy assistant attorney general had allowed his “extreme ideology” to influence his legal opinion supporting the president’s supposed power to authorize torture. But Cheney’s counsel, David Addington, was an ideological soulmate who advocated within White House circles extreme views of presidential power.
Among conservative Republicans, however, are also some government lawyers who fully appreciated the distinction between their personal views and their role as advocate for the government’s. Two that come to mind are two of the Bush administration’s solicitors general: Theodore Olson and Paul Clement.
As solicitor general in 2003, Olson took on the assignment of defending the constitutionality of the McCain-Feingold Act, a campaign finance reform signed into law by Bush with some reluctance and opposed by many leading Republicans and conservatives. Olson prevailed in a 5-4 Supreme Court decision that upheld all but two minor parts of the law.
Six years later, Olson was back before the court, as a private attorney representing the conservative group Citizens United in seeking to strike down a major part of the law. Thanks to a change in the court’s membership and perhaps to his advocacy skills Olson prevailed again in a 5-4 decision that, one suspects, more accurately reflects Olson’s personal views.
As solicitor general in 2006, Clement appeared before the Supreme Court in the District of Columbia gun rights case. Representing the United States, Clement argued in favor of an individual Second Amendment right but also in favor of a relaxed “rational basis” standard for judging gun regulations against that right. Three years later, as a private lawyer, Clement appeared before the court in March on behalf of the National Rifle Association, urging the court to enforce the newly recognized Second Amendment right against state and local governments. This time, Clement spent no time extolling the need for government to enact and enforce reasonable gun regulations.
Among the current Justice Department lawyers, none played a more prominent role in Guantanamo-related litigation than Neal Katyal. As a professor at Georgetown University Law Center, Katyal represented Salim Ahmed Hamdan, the former driver for Osama bin Laden. Along with Hamdan’s military lawyer, Katyal waged a relentless legal fight that culminated in the Supreme Court’s 2006 decision striking down the military commission system as then constituted.
Today, as deputy solicitor general, Katyal has recused himself from all Guantanamo-related matters. But he did appear before the D.C. Circuit Court of Appeals in January to argue the government’s position against recognizing habeas corpus rights for prisoners held at the U.S. Air Force base at Bagram, Afghanistan. In his argument, Katyal distinguished Bagram from Guantanamo by stressing its proximity to an active battlefield and the lesser degree of U.S. control.
When Katyal spoke at a Federalist Society-sponsored program in January, someone in the audience asked him to explain the seeming contradiction with his role in using habeas corpus in Hamdan’s case at Guantanamo. Katyal reiterated the distinctions and said he was quite comfortable personally with both positions. But he added that as a government lawyer, his personal view was in fact irrelevant: that he was obliged to represent the government’s position as best he could.
Nothing in Liz Cheney’s video suggests that any of the Justice Department lawyers have done anything else since assuming government office. Nothing suggests they performed other than honorably and ethically in their previous work in terrorism-related cases. If Liz Cheney a lawyer herself has any evidence to the contrary, she should bring it forward. If not, an honorable woman would retract and apologize for the unwarranted slur.