Consistency: A virtue, or the hobgoblin of small minds?

The ACLU prides itself, perhaps more than any other organization, on the importance of standing on principle. But James L. Huffman, of Lewis & Clark Law School, has an arguable case for accusing the leading civil liberties organization of a glaring insistency this week in his op-ed on “Using Clients to Impugn Lawyers” in this week’s National Law Journal.


Huffman points out that Steven Shapiro, ACLU’s national Legal Director, in a January 12, 2007 statement, criticized now-former Deputy Assistant Secretary of Defense Charles D. “Cully” Stimson for his blast at major law firms for donating free legal services on behalf of detainees at Guantanamo Bay. Stimson, you will recall, urged corporate clients of large and prestigious law firms to consider whether they should use the services of firms that represent suspected “terrorists”, thereby casting aspersions on the patriotism of the firms and their lawyers and seeming to call for a boycott of those firms by corporate America. When virtually all sectors of the legal profession and countless other groups blasted Stimson for his attack on a fundamental basis of our legal system – that even the seeming worst among us is entitled to legal representation – Stimson apologized but, in the end, had to resign. (Good riddance.)


            Huffman does not defend Stimson, but he scolds the ACLU for what he deems its inconsistency in its earlier letter to Senators Patrick Leahy and Arlen Specter, opposing the confirmation of now-Chief Justice John G. Roberts, Jr. The ACLU’s objection was based, complains Huffman, on Roberts’ “briefs and appearances for Associated General Contractors in challenges to federal affirmative action programs and his successful argument before the Supreme Court that a federal statute protecting the privacy of student records was not privately enforceable.”  The ACLU, Huffman writes, should not have criticized Stimson’s tactic of confusing the lawyers at Guantanamo with their alleged-terrorist clients, while itself identifying Roberts with the clients and causes he represented when in private practice.


            Even though one can come up with distinctions between the two situations, Huffman seems to have a point. If the lawyers at Guantanamo should not be smeared by their clients’ alleged deeds, then perhaps a lawyer in private practice, nominated to high judicial position, should not be too closely identified by the positions taken by his clients in court.  The ACLU, which has defended more than its fair share of seedy clients in pursuit of important social and legal values, should know better than to tar a legal mind because of the causes he or she represented in court. All of us, it seems, including at times the ACLU, need to be reminded of the virtues of consistency – what’s sauce for the goose is sauce for the gander.

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