Soft Money Loves An Easy Target

A recurring question is why criminal defense lawyers are underrepresented in government positions, whether judicial, legislative or executive. The easy answer is that we’re easy targets, having spent our careers as gladiators, defenders of the Constitution and, as the NACDL slogan goes, Liberty’s Last Champions.

Actually, we don’t sound half bad when you put it that way. But then, nobody puts it that way.  This is more the way we’re described:

Not only does it pander to ignorance and prejudice, but it’s awfully effective in smearing a candidate for office.  After all, even if you’re not entirely inclined to hate criminal defense lawyers for their role in the criminal justice system, you have to admit that there’s always that place in the back of your head that says, “well, yeah, but look at the scum he works with. Some of that has to rub off on him, right?”

And while the backlash against a candidate who makes such a flagrant smear might be of some small concern, the beauty here is that the very slick ad didn’t come with the opponent’s, South Carolina Governor Nikki Haley, approval. Via ATL:

This ad comes to us from South Carolina, where State Senator Vincent Sheheen, a lawyer, is challenging incumbent Nikki Haley. But Governor Haley didn’t approve this ad, it’s coming to her defense from the Republican Governors Association, a group currently headed by Governor Chris Christie.

While Christie, the former United States Attorney for the District of New Jersey, no doubt understands the role of criminal defense lawyer, and is familiar with a few of the amendments to the Constitution that make up the Bill of Rights, this isn’t a reflection of his lack of concern for the 6th Amendment, but the use of whatever tools are available to win an election.

In Washington Monthly, Ed Kilgore writes:

Taegan Goddard’s Political Wire noted a new Republican Governors Association ad being run in South Carolina against Democratic candidate Vincent Sheheen under the headline: “Most Negative Political Ad Ever?” and suggested it set “a new standard for nasty.” I’d say it sets a new standard for immoral cynicism.

This is just silly. “Immoral cynicism”?  This is out of every political playbook ever written when the opponent is a criminal defense lawyer.  And in the relativistic scale of “immoral cynicism” of politics, nobody owns the worst ever, though that’s never stopped any candidate or soft money group from trying.

There are two reactions to campaign ads like this.  The first, as reflected by Kilgore, is stand there with your hands on your hips and scold other side for being despicable human beings, like that works, or promote the idea that what we do is not only proper, but necessary, in the scheme of our nation.

Will the day ever come that people see the criminal defense function as not only necessary, but admirable?  Probably not.  Let’s face facts, our nation hasn’t done particularly well when it comes to educating our children as to civic virtue.

It’s a whole lot easier to fall back to the simplistic positions of good and evil, and when it comes to having something good to say about what we do, we’re usually on the south end of a train headed north.  Even most beloved journalists can’t quite come up with a good reason to say something nice about defending the accused, except when it’s one of their own. And the best among criminal defense lawyers represents the worst of society, making the story that much harder to tell.

This is where everybody invokes John Adams for defending the Brits for the Boston Massacre, as does Kilgore, but since most Americans aren’t aware that they shot Crispus Attucks, and otherwise think Brits have cool accents, it just doesn’t do the trick.

So here we are, defending criminals, often really bad criminals, because our Constitution requires us to do so.  Yet another reason to take a crayon and cross out offending parts of the suicide pact.  When you tell people at a cocktail party that you’re a criminal defense lawyer, they will usually reply, “that must be interesting.”  Nobody ever says, “thank you for your service to the Constitution.”

Oh, and we get paid for it.  It doesn’t get any more American than that.

14 comments on “Soft Money Loves An Easy Target

  1. Steven M Warshawsky

    The irony is that when Americans wax patriotic about this being a nation of laws not men, about our dedication to the rule of law, about hallowed principles of due process, they really mean the panoply of rights designed to protect persons from the government, i.e., “criminals” accused of crimes by police and prosecutors. But most people fail to appreciate this is what the rhetoric fundamentally is about, and thus completely miss that criminal defense lawyers are the critical linchpin of the system we supposedly hold dear.

  2. Brett Middleton

    “Will the day ever come that people see the criminal defense function as not only necessary, but admirable?”

    For whatever minor comfort it might be, I’m a people and I see it that way. (Fizzbin continues to approve as well, but he’s not a people, so I don’t suppose it helps much.) Since I’m highly unlikely to ever receive an invitation to a cocktail party where you might be encountered, I’ll say it here: Thank you for your service to the Constitution. And I’ll try to remember to say that to any CDL I might happen to meet socially in the future. (Fat chance, but, hey, could happen.)

      1. Brett Middleton

        Worst. Reaction. To. Attempted. Tummyrub. EVER. Way to turn a compliment into a “pistols at dawn, sir” moment. I think I have emotional whiplash (which is like “butthurt” but sounds a lot cooler). You’ve probably trained your dog to bite and you’re just hoping I’ll have a go at it.

        Anyway, I didn’t turn you into a liar! You were already that way when I found you, ’cause you hang with criminals and stuff, so it must rub off on you. Maybe I’ll go thank Dan, instead, since he would probably put me in his next YouTube ad.

        1. SHG Post author

          And you haven’t figured out that I always respond to a compliment with a snarky retort? And leave my dog alone, you bully.

  3. Kirsten Small

    Scott,
    This kind of stuff is hardly new in South Carolina politics, and it’s not just the criminal defense lawyers on the receiving end. If a lawyer running for office has done any work at all for the state, he or she can expect an attack ad about “living off taxpayer money.” It’s so bad the SC Bar has launched a website to combat it.

    1. SHG Post author

      I believe this is the website you’re referring to? While it’s good that the bar is taking a position against this crap, these efforts pale in comparison to the TV ads. But then, the option of fighting fire with fire is expensive and time consuming. It’s a very serious problem, getting beyond ignorance and prejudice. Once people “believe,” it’s very hard to make them “unbelieve.”

  4. Bruce Coulson

    “well, yeah, but look at the scum he works with. Some of that has to rub off on him, right?”

    That never happens to the police (despite their even closer contact with scum); perhaps CDLs can borrow some of the teflon officers are sprayed with?

    1. SHG Post author

      It matters which side you’re on. It’s not a viable analogy, even though there’s probably more truth to it than outsiders could possibly imagine.

  5. SPO

    I think that going after criminal defense attorneys turned politicians is simply payback. The left went after Roberts for his clients too. I guess, at the end of the day, it’s up to people to decide whether they want someone who defended criminals to be their governor. By the by, John Edwards’ record as a trial lawyer should have gotten more scrutiny.

    What is interesting to me is that the “wise [sic] Latina” can goatrope a simple explanation of a Supreme Court dissenting opinion, but, because she votes correctly, she’s ok. People on that side of the fence have no business whining about a GOP ad going after a defense attorney.

    1. SHG Post author

      Sotomayor was a prosecutor, and this isn’t a left/right thing, but an apolitical defense lawyer thing. If you feel compelled to write stupid comments to further your political agenda, try to avoid being a flaming ignoramus in the process.

      1. SPO

        Apparently, I have to set forth my reasoning in longhand. (Funny that—no one in here seemed to get that I actually agreed with Obama’s commutation and stated that I wouldn’t have pressed the issue on the SOL argument were I the prosecutor—i merely noted that this wasn’t the most awful thing in the world.)

        [Ed. Note: Balance deleted. This is a law blog, not a political blog. Irrelevant, lunatic political rants are inappropriate here.]

        1. SHG Post author

          You are functioning under a narcissistic misconception. No one cares how “SPO” feels. What does matter is whether SPO has any thoughts relative to law that add anything resembling thought. If you want to discuss politics, do it elsewhere. If you want to discuss law, then use reasoning. If you feel compelled to engage in ignorant rants, then your comments will be trashed.

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