GOLDMAN: Will Governor McAuliffe save Herring’s career?

Posted at 4:40 PM, Jan 24, 2014
and last updated 2014-01-24 16:40:01-05

RICHMOND, Va. – Today’s lead Richmond Times Dispatch editorial said Virginia Attorney General Mark Herring’s decision to abandon his client [the state] and switch to the pro-side in the same-sex marriage law suit “borders on dereliction of duty.”

The RTD’s position is particularly important since the paper’s editorial page strongly supports same-sex marriage.

But while agreeing with Herring’s substantive position, they find his unprecedented action to violate basic attorney/client relations.

Haven’t read the RTD editorial? If you read my column yesterday, then don’t worry: you already know their basic analogies and points.

Mr. Herring might well be advised to pay heed. What if the federal judge in Norfolk hearing the challenge to the state’s constitutional ban on same-sex marriage agrees with the RTD?

She could deny Mr. Herring the right to intervene on the plaintiff side and thus against his former client. There is cause as the RTD suggests.

Such a ruling might ruin Mr. Herring’s career. Once an AG gets a reputation for overreach, it is difficult to unring the bell.

Yesterday, Herring said politics played no role in his unprecedented decision to advocate against a state law after his office had already been in the process of defending it. The defense admittedly came during Ken Cuccinelli’s reign.

But having a new leader still leaves the same Office of Attorney General as legal counsel to the defense. Thus Mr. Herring can’t claim a clean slate in this case.

My suggestion

Herring needs Governor McAuliffe to exercise his gubernatorial authority to see that all laws are faithfully executed. The Governor could order the Attorney General to advocate against the law on the ground he believed it imperative for Virginia not to be enforcing laws clearly unconstitutional based on decisions in other federal jurisdictions.

This should be enough for the Norfolk judge.

Otherwise Mr. Herring going forward faces more risk than reward.


He has already gotten his hoped-for reward, wide praise among Virginians opposed to the same-sex ban. The lawyerly technicalities generally don’t trouble voters, they are interested only in the bottom line.

Herring’s pro-gay marriage stance therefore is all that matters to them.

But a federal judge, facing a motion by an outraged defense side over Herring’s switch, might see it differently.

Governor McAuliffe can therefore provide the needed protection. Why not do it?

Otherwise a slam down from a federal judge remains possible.

Paul Goldman is in no way affiliated with WTVR. His comments are his own, and do not reflect the views of WTVR or any related entity. Neither WTVR nor any of its employees or agents participated in any way with the preparation of Mr. Goldman’s comments.