WashPost: 'Extraordinary Circumstances' Justify Va. Democratic AG's Crusade Against State Constitution

January 27th, 2014 12:45 PM

As I noted last week, when the Washington Post in mid-October issued their endorsement of Democrat Mark Herring for Virginia attorney general, the paper's editorial board hailed the then-state senator as someone who, unlike his "doctrinaire conservative" opponent Mark Obenshain and predecessor conservative Ken Cuccinelli would "hew to the former Virginia tradition of offering restrained and responsible advice" for the state government. After all, the attorney general is responsible for managing the "office that functions as the law firm for the governor, legislature and agencies of state government" and as such should be above ideological or partisan hobby horses, the paper argued.

Fast forward to last week. Herring, on the job barely two weeks as Virginia attorney general, announces he will not only refuse to defend the state's constitutional definition of marriage as between a man and a woman but that his office will file a brief in federal court arguing that the state's definition of marriage violates the U.S. Constitution. Feeling the need to defend their man Herring from charges by Republicans that the AG is not only shirking his duty, but flaunting his intention to do so, the Post editorial rides out to the rescue with a six-paragraph defense of his "strategy," excerpted in full below (emphasis mine):


MARK HERRING (D), Virginia’s brand-new attorney general, has decided to participate in a legal attack against a provision of the state’s own constitution, joining two couples in federal court to argue that Virginia’s ban on same-sex marriage violates the U.S. Constitution. GOP critics allege that Mr. Herring is disregarding his obligation to defend Virginia’s laws, even turning the state into a “dictatorship” in the process. The National Organization for Marriage wants him impeached. That sort of outrage is not even close to called for.

We broadly agree with Mr. Herring’s reading of the law. The Constitution’s guarantee of equal protection cannot be reconciled with denying, on logically flimsy grounds, equal access to civil marriage for a group that has for centuries been singled out for discrimination.

Yet the instinct, tradition and expected practice of the government’s legal representatives must be to defend duly established laws against legal challenge, even those with which they personally disagree. During the George W. Bush administration, it was noble and proper of then-Solicitor General Theodore Olson, a strong conservative, to defend federal campaign finance laws against legal attack. Only when attorneys general are convinced that no reasonable argument could vindicate a law under challenge should they feel comfortable doing anything but aggressively defending enacted statute.

The reason Mr. Herring’s move isn’t wholly unwise, and shouldn’t be used to excuse less-responsible deviations from the norm, is that this issue is highly unusual. The constitutional case for equal marriage isn’t just strong; the ultimate arbiters of what is and is not constitutional are well on their way to saying so. In rulings last year, the Supreme Court pointed toward eventually declaring equal marriage rights to be a constitutional guarantee. Two federal district judges have already taken the justices’ lead and overturned same-sex marriage bans in other states. The worst that can be said of Mr. Herring and officials doing similar things in other states is that they are running ahead of the Supreme Court. That’s a stretch of their official responsibilities, but it’s hardly a rank betrayal of duty.

It would have been unacceptable, too, if Mr. Herring hadn’t made sure that someone would defend Virginia’s ban in court. But the defendants in the suit, two county clerks, have attorneys, one paid for by a state fund, the other by a national activist organization. Members of the General Assembly are also examining ways to hire counsel to represent them before the court.

We worry that Mr. Herring’s decision will add to the nasty partisanship that increasingly grips Richmond. It won’t be lost on anyone that the attorney general’s move stands to set him up as a leading contender for the next Democratic gubernatorial primary. Instead of allowing this to further polarize the capital, Republicans should tone down their outrage. And Mr. Herring should make clear that this is an extraordinary circumstance and that he will live up to the competence and professionalism that Virginians traditionally have expected of their leaders.

So the Post is essentially trying to cover for Herring by saying he should be given a mulligan by Republicans because this is an extraordinary case in which there's no possible logical legal argument to defend the constitutionality of Virginia's constitutional provision. That Herring deliberately provoked a partisan firestorm with his actions is grudgingly acknowledged by the Post, but it's Republicans who are chastised and urged to rise above the partisanship, which, naturally means rolling over and doing nothing in response. 

The Post also fails to admit that maybe, just maybe, it was wrong three months ago about Herring being a non-ideological actor. It desperately wants to believe this is a once-off, not an alarming incident that could become a pattern. Of course, the Supreme Court's rulings on same-sex marriage issues came down last June, five months before the October editorial. It was likely to become a live controversy sometime during Mr. Herring's term in office, yet the then-candidate carefully avoided being pinned down on the matter and the Post editorial board blithely ignored the possibility of the Democratic AG putting partisanship and ideology above his professional duty.

The bottom line, once again, is that the Washington Post may proclaim itself an "independent newspaper," but it proves time after time to be the party organ for liberal Democrats. It's not fooling anyone, and it's only insulting the intelligence of the few remaining conservative subscribers it has.