For those who haven’t had enough of the Harvard/Ron Sullivan debacle yet, Randall Kennedy has written an op-ed about Harvard’s disgrace in the New York Times. As a Harvard law professor, he’s moderate in his approach, meaning that the dolts who can’t follow his words, and the dolts who won’t, remain unconvinced. That can’t be helped.
But there is a tangent, deriving from the scenario, that has permeated the unduly passionate minds of the woke that portends deep problems in the future.
MSNBC television personality Chris Hayes, no stranger to empathy he, asked on the twitters:
Vis a vis the latest Harvard story, the question I wrestle with is, as a matter principle, isn’t it sometimes justified to criticize a lawyer for which clients they choose to take on?
Put Sullivan aside. Put Weinstein aside. Put aside the claims that Sullivan’s non-renewal as faculty dean was for reasons that were claimed years earlier but deemed too insignificant to address, or the bizarre conflation of dean and Title IX investigator. Instead, consider only the question posed by Hayes, which put in the spotlight an issue that arises occasionally.
Remember when Hillary Clinton was castigated for her representation of a rapist? Whenever a criminal defense lawyer runs for office, the awfulness of their clients is thrown in their face. The defense tended to fall along principled lines before the conflicted ideology of social justice seized the minds of the woke, whereupon a dilemma arose.
But we chose these clients? A rationalization has appeared to distinguish the virtuous public defender-types, who have no choice in the horrible people they defend, from those of us who do so out of choice. It’s a lie, and the downtrodden public defender-types are as guilty of perpetrating this lie as is the New York Times.
We would all be thrilled to defend the Pope from drug charges, but he doesn’t get indicted too often. On the other hand, the people who do get indicted have a right to counsel too. Defending the Constitution, and putting the government to its burden of proof, is what we do.
I take no pleasure in pointing out public defenders’ failings, though they don’t necessarily return the favor. In order to rationalize what they do with what private criminal defense lawyers do, they’ve constructed an argument that they are constrained, by job and duty, to defend awful people whereas we chose it. If they rep a rapist, they have no choice. If we rep a rapist, it’s a reflection of whom we choose to defend, meaning that at best we’re money-loving whores and at worst rapist-loving whores. Or both. So they escape taint. We do not.
And if the rapist happens to be a billionaire, which is itself a status deserving of intrinsic hatred, then there can be no excuse. After all, even the argument that every defendant deserves a zealous defense doesn’t mean that the billionaire can’t find some other money-loving or rape-loving whore to do his bidding, so it’s not as if it’s you or he goes unrepresented.
Of course, the logic fails to withstand even cursory scrutiny. Should every “decent” private lawyer refuse to defend the hated defendant, then the only lawyer who would choose to take on such a defense would be, by definition, indecent. If only indecent lawyers represented indecent defendants. Defendants would thus be tainted as indecent by dint of the indecent lawyers who would deign to defend them, going into trial. They would be spurned by decent lawyers for their awfulness, their guilt.
The question, however, comes at the “problem” from the perspective of the selectively empathetic. As Hayes is conflicted, torn between his feelings for the sad victims, and children made to feel unsafe by the possibility of someone being their proximity, their culture, who doesn’t abhor the people they abhor, how can one not feel that there should be some line that shouldn’t be crossed?
Mind you, the public defenders who promote this perception provide some sense of legitimacy to the inquiry, since they are obviously on the defense side and if even they find the question reasonable, and the choice of representing wealthy but horrible (read, “we know he’s guilty of this crime that disgusts us”) defendants, then the non-lawyers can’t be completely crazy.
This isn’t how real defense lawyers perceive their duty. And by italicizing “real,” I mean to point at those public defenders who would rather undermine the defense function, would sacrifice the Sixth Amendment, then face the fact that their social justice ideology is in direct conflict with what real criminal defense lawyers do. We defend.
We defend anyone accused of a crime. We do not refuse representation because the defendant is too wealthy, his crime too awful, his skin color too pale or his genitals too stiff. We couldn’t care less that the woke have deemed him too guilty to be worthy. We do not judge. That’s for the jury to do. We defend.
The notion that criminal defense lawyers should become the advanced guard of morality and justice is one that appeals to those for whom such vagaries protect their feelings from dispute. They can afford to take refuge in their preconceived outcomes, as it allows them to pretend their feelings are always justified. That’s fine, if that’s the way you want to live your life. Criminal defense lawyers, however, have chosen to live their lives in a way the puts the Constitution first, puts a duty to challenge the government and its complainants to prove their case first.
Not everyone, or every lawyer, is cut out for criminal defense, as they can’t overcome their emotions to take the cold, detached view of their duty to defend as a fundamental principle, no matter who their client may be. But the inability of people like Hayes, and the woke public defenders, to overcome their feelings and put principle first will serve to impugn our purpose to defend the Constitution and challenge the government if not shut down.
In criminal defense, no. Never.
There is no other answer.