Justice Kagan: Drive American

To celebrate one of the foundational victories for criminal defendants, Supreme Court Associate Justice Elena Kagan went to the Attorney General’s home at the Department of Justice.  She received no invitation from the Defender General, because there is none. And if there was, his home would be far less hospitable than the Grand Hall of the Department of Justice, a euphemistic agency given that it only houses prosecutors.

From the Blog of Legal Times :


Speaking before a standing-room only crowd in DOJ’s Great Hall with U.S. Attorney General Eric Holder Jr. and former Vice President Walter Mondale, Kagan said the provision of a “Cadillac” lawyer isn’t a right for poor defendants. But they should at least have a “Ford Taurus” defense, complete with a lawyer who has the skills, resources and competence necessary to thoroughly advise a client.

While I love car analogies as much as the next guy, though neither automobile chosen by Kagan as examples are high on my list for fascinating discussion, the comparison was destined to raise hackles. And indeed it did.

Why are poor defendants relegated to a second class defense? Why a Ford Taurus when the prosecution gets a Stealth Bomber?  Why?  Her ultimate point was that indigent defendants aren’t even getting a Taurus now, and that’s inadequate.



“We don’t have the resources to make [a Cadillac defense] happen,” Kagan said. “And I’m not sure if we did have the resources that that’s exactly what we should want.”


But even a Taurus defense is hard to come by, she said.


So what is it that a Supreme Court Justice thinks defendants receive?  A Yugo defense? Maybe an Edsel? If a Taurus is required, and they are only getting a Pinto, do they get a Vega to make up the difference? The problem with analogies is they leave us with some vague sense of comparison without any meaningful standard.

But Attorney General Holder decided to help Kagan out but putting his idea of a good thing into the mix.


During the event, Holder announced $1.8 million in new resources to support criminal legal defense. Indigent defense is in a “state of crisis,” said Holder, who in 2010 launched the Access to Justice Initiative in an effort to make legal services accessible and affordable to all Americans.

A whole $1.8 million? That’s enough to buy a spark plug (at government contract rates) for every public defender in Brooklyn, staving off a “state of crisis” in the spark plug industry, but it won’t scratch the surface of getting poor defendants into Ford Tauruses. Not even old, broken down used ones.

Justice Kagan questions whether a “Cadillac” defense is what we want anyway. The only reason that I can think of for saying this is that it’s too expensive for the taxpayer, to give every indigent defendant a great lawyer with all the bells and whistles that money can buy. It’s a curious concern, given that the prosecution has the police, the option to charge and prosecute and the hearts and minds of the public and the courts.

But the analogy isn’t quite fair and isn’t really fitting.  Granted, Supreme Court Justices have no power of the purse to spread the wealth, divvy up the cars in the lot so that the defense and the prosecution are in relative parity.  They do, however, have the authority to wipe  Strickland v. Washington from the books. They could make the rule a right to effective assistance rather than ineffective, a threshhold that allows for a fouled carb to pass muster.

They can hold that a defendant was denied his constitutional right to counsel when his lawyer sleeps through his trial, fails to investigate, can’t be bothered to speak with his client, demonstrates no effective ability to mount a defense.  Are these the attributes of a Cadillac? More like a Ford Taurus with a cracked block, no breaks and a dead battery. See how anybody can use analogies?

Even A.G. Holder can contribute to the cause, given his proclaimed concern for the extant state of crisis, by ordering his underlings not to charge every conceivable crime given the allegations as presented by their vast army of law enforcers, without regard to proportionality, propriety, purpose. The feds do because they can, and they can because Congress has exempted them from the speed limit that applies to the rest of us by creating new crimes on top of existing crimes, raising the penalties to life plus cancer whenever an election is coming in the next two years and a story of a dead victim hits the papers.  But I digress.

Straining to understand why someone as smart as Elena Kagan would use such an ill-conceived analogy, one so obviously destined to criticism while being absurdly inadequate to make a valid point of the failure to provide even adequate representation to so many poor defendants, it finally dawned on me.  This wasn’t about poor defendants at all.

This was Justice Kagan’s homage to the American automobile industry, too big to fail and therefore worthy of billions of dollars that might, in some alternate universe, have gone to providing American citizens with competent representation. The only remaining question was whether the Supremes were adequately compensated for the product placement.

The United States of America has funds when it needs to drop bunker buster bombs on a desert despot who isn’t our pal any longer, and private enterprise that has run its products into the ground such that no one will buy them.  This nation is happy to leave the last breath of young Americans on foreign soil while sucking the last breath from other young Americans in solitary confinement for crimes they didn’t commit.  If this nation wanted to, they could provide every person hauled before a court with a lawyer, one with the time and resources to do a proper job, a Ford Taurus job.

But the United States of America is more concerned about the viability of the Ford Taurus then poor criminal defendants, and that, I submit, is how they got Elena Kagan to be the new spokesjurist.  Don’t be surprised to see a guy chiseling a new slogan in the lintel over the courthouse doors, Drive American.








5 comments on “Justice Kagan: Drive American

  1. Jim Majkowski

    If the vast army of LEO would conduct their investigations to discover, and their reports to disclose, what actually happened, instead of what’s useful to them to obtain a conviction, the “Taurus” may be enough.

    Yes, I know SJ hates platitudes. But as the poet said, “… or what’s a heaven for?”

    As for Ms. Kagan, I demur.

  2. Shawn McManus

    One big problem here lies with how such a “Taurus threshold” is determined.

    Who gets to determine if an attorney is competent and what are the criteria? The AG and remaining awake during trials?

    While the fuzzy logic needed for such an algorithm isn’t impossible to define, setting the thresholds is a matter of endless and perhaps fruitless debates. Actually following through it, i.e. telling a CDL he’s unfit to represent clients and barring him from doing so, will not happen.

    However, if anyone wants a good engineer to work on that math, I’d be happy to make some recommendations.

  3. Bruce Coulson

    But imagine how many drones could be bought with the kind of money needed to provide adequate legal representation! And with sequestration, money is tight; sacrifices have to be made.

    Besides, the poor are poor (strike one; if they were good citizens, they wouldn’t be poor) and have been arrested (strike two). Spending money on the undeserving poor is never a good choice in Washington.

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