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Karen Gillibrand and John Yoo

By Jack M. Balkin

I take it that most of us would be outraged if John Yoo were named to the Senate or otherwise proposed as the (presumably Republican) candidate for the House or Senate. Why are we not equally outraged by the appointment and presumptive re-election campaign of New York Democratic Sen. Karen Gillibrand, who, it turns out, was an avid and willing mouthpiece (other words come to mind that would be even less tactful) for the tobacco industry in the 1990s? The Times writes that "Ms. Gillibrand plays down her work as a lawyer representing Philip Morris, saying she was a junior associate with little control over the cases she was handed and limited involvement in defending the tobacco maker." This, it turns out is an out-and-out lie. Jay Bybee probably has a better claim to being de facto out of the loop on the torture memo than Ms. Gillibrand does with regard to serving an industry that has killed far more people than any of the various torturers some of us would like to see brought to bar of justice. Moreover, it is equally a lie that, as a young associate, she was forced to take the cases assigned her. According to the Times, "in an approach that was not uncommon at law firms that represented tobacco companies, lawyers at Davis Polk were permitted to decline work on the tobacco cases if they had a moral or ethical objection to the work." She apparently had no such objections.

Back to John Yoo: Whatever one thinks of his handiwork in the OLC, and like everyone else who writes for Balkinization, I am distinctly not an admirer, there can be no real doubt that Yoo was motivated by patriotism (even if it is, on occasion, the last refuge of the scoundrel). What can Gillibrand say, other than she was a thoroughly opportunistic young lawyer who, it appears correctly, perceived that her star would shine if she took the kind of work that other lawyers at Davis Polk may well have shied away from. The Times quotes "Todd Henderson, an assistant professor at the University of Chicago Law School, [who] argued that it would be unfair to assess lawyers by whom they represent. 'Nobody would want to live in a world in which lawyers are judged by the clients they take,' he said. " This is, with all due respect to Prof. Henderson, absurd, save in the limited sense that one must know more than the identity of the client before juding the lawyer. Is the lawyer, say, a public defender, who would and should certainly defend the worst axe murderer (and tobacco company) against criminal charges brought by the state. Is the lawyer so junior and vulnerable--perhaps with tons of debts--that it's simply unfair to make any judgment about what civil clients she chooses to represent? Has the lawyer chosen, as Ms. Gillibrand apparently did, to become (close to) part of a criminal conspiracy to suppress relevant evidence of her client's perjury? And so on. (I am eager to see if David Luban, one of the country's leading authorities on legal ethics, sees any merit in Prof. Henderson's argument.)

If the Democrats in New York have any self-respect (a big assumption), they will promptly find a candidate for 2010 who is, at the very least, at least as honorable as John Yoo in his/her motivations (and, one hopes, considerably more competent as as a lawyer, should the Democrats choose a lawyer).

A caveat: It is obviously true that I am basing this on the New York Times story. Perhaps it is wrong, and perhaps I will publicly apologize to Sen. Gillibrand after she gives her side of the story, with supporting documentation. But that is simply to say that the burden of proof is on her to demonstrate that the Times story is false (in the old days, she could sue for libel) and, in the absence of such proof, she should be soundly repudiated by the Democratic Party. Is it enough, incidentally, that she may have cast a vote or two in Congress against big tobacco? No, unless she offers credible evidence that it is the result of a conversion experience, perhaps based on what she saw when she was shilling for the tobacco industry, instead of just another example of rank opportunism (as with her post-appointment switch on gun control). As a model of integrity, give me John Yoo, who performed in the OLC precisely as one might have predicted from reading his pre-appointment scholarship and who has valiantly defended himself against his critics since then.

Full post as published by Balkinization on March 29, 2009 (boomark / email).