Opinion: A Return to Process in the AG’s Office

Charlie Beller '18
(he/him/his)
Guest Columnist

It’s Time for a “Virginia”1 Lawyer. As the past year has made all too clear, we live in a divided political climate.  UVa Law seems exceptional within the larger national, state, local, and University environments in its commitment to facilitating dialogue among varying viewpoints.  Two instances last week offer great examples:  the Virginia Environmental Law Journal’s symposium on “progressive” federalism under the Trump administration and the Common Law Grounds event on democratic dialogue in a polarized media landscape.  These events are just two examples of the rich discussion occurring at the law school that transcends and challenges political and ideological categories.  In a very real sense, our community seems intent on engaging differing viewpoints and seeking “common ground.”  

 John Adams, Virginia Law '03, a candidate for Virginia Attorney General.

John Adams, Virginia Law '03, a candidate for Virginia Attorney General.

As a 3L, this all seems normal at UVa Law.  Yet when we look at the national, local, and even University communities, mutual respect and civility seem to disappear.  What makes the law school community special?  There are many things.  But one that deserves appreciation is a respect for process that we learn here at UVa Law.  The term “thinking like a lawyer” gets thrown around without much specificity.  Yet on some level, it conveys a special respect we learn as law students for the legal process as a mechanism for translating cultural norms and ideas into legal rules.

It should come as little surprise to students of this law school that alumnus John Adams’s campaign for Attorney General of Virginia is defined by a commitment to legal process and separation of powers.  As with all campaign slogans, these principles are empty without reference to how these principles manifest themselves in policies and courses of action.  The duty to defend the laws of the Commonwealth is one issue Adams has emphasized a commitment to legal process that would lead him to different results than incumbent Mark Herring.2

Our own Professor Saikrishna Prakash has noted in recent scholarship that the duty to defend state laws raises myriad legal issues that are highly susceptible to political exploitation across the partisan divide.3  In short, there are many considerations, including state and federal constitutional obligations, a state officer must consider in evaluating his or her duty to defend a state law.  Adams’s position is that it is not a blind “duty to defend,” but a commitment to defending validly enacted laws, with emphasis on state constitutional provisions.4  This stands in stark contrast to incumbent Mark Herring, who has declined to defend even laws he supported as a state legislator.

At the federal level, the Department of Justice has a longstanding practice of defending the constitutionality of duly enacted statutes if “reasonable arguments can be made in their defense.”5  Importantly, however, the “department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a ‘reasonable’ one.”6  Accepting former Attorney General Holder’s permissive standard of reasonableness, Mark Herring has some explaining to do.

In 2006, Professor A.E. Herring supported Virginia’s constitutional amendment defining marriage as the union of a man and woman.  In 2014, he declined to defend the very same law he supported and voted for.7  Under the permissive standard outlined by Holder, either Herring’s judgment as a Virginia state senator lacked any “reasonable” justification or Herring declined to defend Virginia law for political reasons.

Professor Howard has argued that Herring was within his constitutional authority to decline to defend a state law he perceived to violate the federal Constitution.8  But even if declining to defend a state constitutional amendment is within the discretion of the attorney general under the Virginia Constitution, Holder’s description of standard executive practice (at least at the federal level) highlights that Herring should have considered whether he could make a “reasonable” argument in defense of the law.  Herring might have had a profound personal change of opinion, but his executive decision to nullify a Virginia law he presumably thought lawful and correct, at the least “reasonable” (one only hopes) when he voted for it, reflects a disregard for his duty to serve as Virginia’s lawyer.

All persons in private and public life, including the attorney general, should reconsider personal positions following reflection and dialogue with differing views.  Indeed, strong executive leadership often requires reevaluating prior beliefs in light of additional information or further study.  But a radical shift in personal opinion should be accompanied by a level of intellectual and political humility—especially for public officials whose decisions have the potential to affirm or undermine the rule of law.  If Herring thought he was fulfilling his public duty by voting in support of the Virginia marriage amendment, it strains credulity to believe that he could marshal no reasonable arguments to defend the law he supported as a legislator.

Should we worry about process if ultimate outcomes align with our sense of justice? Yes.  Particularly in a divided political environment and in a politically “purple” state like Virginia, respecting process is essential to the stability and legitimacy of changes in the law.  In periods of political uncertainty, a commitment to process also provides security against the risk that legislative victories will be nullified by the executive whim of future administrations.  As many progressives have come to appreciate, executive power is a double-edged sword.  For those intent on changing the law, respect for legal process and the separation of powers are principles that provide stability to legal and social progress.

You might disagree with Adams on the substance of certain issues, but his campaign message is an important reminder that legal process matters to good government, now more than ever.  For many, outcomes are all that matter.  In our heated political environment, elevating results over process might seem like the only way to ensure that we achieve our perceived sense of justice.  But if we “think like lawyers,” we recognize the separate and unique value of the law making at the legislative, executive, and judicial stage.  As Lawhoos, we’ve learned to respect the process of debating, legislating, litigating, and adjudicating the law.  If you want a “Virginia” lawyer for the Commonwealth, consider fellow Hoo John Adams next Tuesday.

---

gcb4be@virginia.edu

1 UVa, of course.  See United States v. Virginia, 518 U.S. 515, 584 n.4 (1996) (Scalia dissenting) (“there is only one University of Virginia.”).

2 “As your Attorney General, I would never disrespect the will of Virginians by refusing to defend perfectly valid Virginia Constitutional amendments in court.” John Adams for Attorney General, Issues, http://www.johnadamsforva.com/issues (last visited Oct. 30, 2017).

3 See Prakash, 50 States, 50 Attorneys General, and 50 Approaches to the Duty to Defend (with Devins), 124 Yale L. J. 2100 (2015).  

4 Supra, n. 1.

5 See Letter from Eric H. Holder, Jr., Att’y Gen. of the United States, to John A. Boehner, Speaker, U.S. House of Representatives (Feb. 23, 2011).

6 Id.

7 See Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014).

8 Bill Sizemore, Author of Va. Constitution backs AG on Marriage, The Virginian-Pilot (Apr. 14, 2014).