The story is that Associate Justice Harry Blackmun was given authorship of the 7-2 majority opinion in Roe v. Wade because he was the Court’s medical maven. Before joining the Court, he had represented the Mayo Clinic, and so by some magic of osmosis, he absorbed medical knowledge sufficient to enable him to pen a more sound decision than the brethren.
This may well be true, not so much because Blackmun was personally capable of doing more than placing a band-aid on a boo boo, but because the rest of the Court was even more lacking in medical knowledge than Harry. In the land of the blind, the one-eyed man is king.
At Slate, Kyle Barry calls for the Democratic candidates for president to make a commitment.
Since the Supreme Court decided Gideon v.Wainwright in 1963, states have been required to provide a government-paid lawyer to criminal defendants who cannot afford one, and for nearly six decades Gideon has been a celebrated part of this country’s constitutional bedrock. But last month, Justice Clarence Thomas took a narrow case about the right to appeal criminal convictions and turned it into an attack on the entire Sixth Amendment right to counsel. Thomas’ effort to undo a central criminal justice system safeguard speaks to a sad truth about our courts: Too few judges have any experience representing indigent criminal defendants, and without more public defenders on the bench, the rights of criminal defendants can never be fully secured. This is hardly a new problem but it has been exacerbated by Trump, who has yet to appoint a single public defender to the federal bench.
Putting aside the correctness of Thomas’ view was that the right to counsel for the indigent reflected in Gideon should be left to legislation, that the Constitution protects the right to counsel, but only if you can afford one, and that free counsel for the indigent is a policy choice that should be left to legislation, Barry slipped something in here that could easily escape notice. He didn’t call for a justice who was a criminal defense lawyer. He called for a public defender.
The lawyers who best understand the importance of these sorts of basic protections, of course, are public defenders. And the Supreme Court hasn’t had a justice with significant experience representing indigent criminal defendants since Thurgood Marshall, who founded the NAACP Legal Defense Fund, retired in 1991. Two current justices—Samuel Alito and Sonia Sotomayor —worked as prosecutors. The rest have no hands-on experience with the criminal justice system, creating what Washington Post columnist Radley Balko has called a “massive blind spot” in the court’s decision-making.
Thurgood Marshall wasn’t a public defender. Alito’s holds dear his prosecutorial experience, while Sotomayor, despite her record of conviction-affirmance on the Second Circuit and lack of actual experience to back up her empathy, has shown a willingness to see crim law through a defense lens.
But that reference to Radley Balko, to the “massive blind spot” on the Court, is somewhat disingenuous. The missing view is that from the defense table in the well. Nowhere does he suggest that the person at the table should be a public defender.
This absence of experience extends beyond the Supreme Court to the entire federal judiciary. Former public defenders are woefully underrepresented on both the trial-level district courts and the circuit courts of appeal, while experience as a prosecutor remains a common and largely unquestioned career path to the federal bench.
What is being promoted here is that the alternative to prosecutors are public defenders. There is nothing, per se, wrong with public defenders. They are valued and necessary players on the defense side of the courtroom. But they are not the alternative to prosecutors, but merely a subset of the lawyers defending the accused.
On the whole, PDs are young, inexperienced and overworked. Working as a public defender has long been viewed as a training ground for competent criminal defense lawyers, gaining trial experience and savvy so that they will eventually emerge to be ready for prime time. Some are terrific lawyers. Some are warm bodies. Some are walking conviction machines. Just like all lawyers, they are as good as they are, and as bad as they are, at what they do. Being a PD isn’t magic.
It was only a few years ago that public defender Tina Peng took to the papers to proclaim her ineffectiveness and, yes, incompetence.
An unconstitutionally high caseload means that I often see my new clients only once in those two months. It means that I miss filing important motions, that I am unable to properly prepare for every trial, that I have serious conversations about plea bargains with my clients in open court because I did not spend enough time conducting confidential visits with them in jail. I plead some of my clients to felony convictions on the day I meet them. If I don’t follow up to make sure clients are released when they should be, they can sit in jail for unnecessary weeks and months.
Does this make her Supreme Court worthy? But the activists soon realized that this was horrible branding, and so they took to the criminal law reform twitters to proclaim their fierceness and virtue, turning themselves into the heroes of their own cries. To the wary, the gaps in their claims are painfully obvious, telling half-stories and making up nonsensical excuses for their failings. They’re pretty good at manufacturing sad tears for their clients. Whether they’re any good at defending anyone can’t be discerned.
But there is another aspect to the stories they tell, that PDs represent horrible people because of duty, not choice. They fulfill the constitutional mandate that every person is entitled to a defense, but they don’t sully their hands with filthy lucre, or choose to be the person standing next to some person they would obviously prefer to execute than defend.
As Harvard lawprof Ronald Sullivan has seen of late, this distinction inured to his extreme detriment. It’s acceptable to defend unacceptable defendants, but only if it’s forced upon you. Choosing to do so, for a fee no less, makes you complicit in their offense. In order to elevate their position from public pretender to Supreme Court justice, they fostered antagonism between PDs and the rest of the criminal bar.
Barry’s pitch, about the need for a PD on the Supreme Court to counter both the prosecutors and non-criminal lawyers, isn’t accidental.
For progressives, the Trump era has ignited perhaps unprecedented interest in the courts and judicial nominations. On issues from immigration to the environment to voting rights, just to name a few, the federal courts have been the primary check on the Trump administration’s often cruel and discriminatory policies.
There is one thing that’s become nearly universal among young PDs that’s glaringly missing from the private criminal defense bar. They are not merely fierce and virtuous in their own minds and twits, but reliable social justice warriors. The private criminal defense bar, on the other hand, finds itself constrained by facts, logic and the understanding gleaned from years of experience. Barry doesn’t want us on the Supreme Court. Just PDs.
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That is a very cynical way of looking at the problem. We wonder how the Dersch Factor would look at it?
Nobody forces you to go to law school,… Unless your parents are authoritarian rtyrants. When you pass the Barr, nobody forces you into public indenture where you cannot earn enough to buy a decent suit. It’s a choice you make, to dance with the devil which is the State.
Obviously, we have a love-hate relationship with PD’s we have known. (Involuntary, I might add.) The best was in the U.S. Army, by the way. We blew them outta the water. The civilian ones have been willing warriors, but weak in the knees and weak face of state hegemony which almost always finds ways to make end-runs around “due process” AND Constituitional guarantees.
We feel their pain. Packing the courts with PD’s, I dunno?!?
Bill, haven’t we discussed your being the first person to comment?
Yes, but I’m antiauthoritarian, you know, and I don’t like rules. Rules are for gigrools and fools. Meant to be broken, so to speak. Don’t care for judges either, unless they come from the defense side of the well.
RGK is the exception of course, at least here at SJ. Ha. If DJT were the first to comment, you would not be bitchin! Trust it.
I’m relieved to say that the PDs I worked with were not of the belief that PD work alone makes you great. Maybe it was because we all knew that some of the worst judges and private defense attorneys were former PDs. Or maybe it was the fact that some lifelong PDs in our office were the most oath-averse scoundrels around. The one thing I did notice— and the thing most pertinent to your post— was that the private bar judged the PDs by their worst examples, and vice versa. It seemed that the bell curve was something neither “side” could/wanted to comprehend.
I had a little tiff with a baby PD on twitter the other day, where I was basically challenged to call out the bullshit, which meant denigrating PDs. I chose not to do so, not because PDs are so ginchy, but because it does not serve the best interests of the criminal defense bar to foster antagonism between PDs and private lawyers.
The problem, as in Barry’s post, is that they are asking for a smackdown on their bullshit if they don’t stop the self-puffery. Push this envelope hard enough and eventually the reality of incompetence, inexperience and ideological stupidity is going to come out. Is that really where they want to go?
SHG,
Right as rain.
But, if progressives are looking for PD experience they should look no further than United States Circuit Judge Jane Kelly from my Circuit. She received a Bachelor of Arts degree, summa cum laude, in 1987, from Duke University, and a Juris Doctor, cum laude, from Harvard Law School, in 1991. Her classmate was President Obama.
After graduation, Kelly was a law clerk to Donald J. Porter, chief judge of the United States District Court for the District of South Dakota. She then clerked for David R. Hansen, a judge of the United States Court of Appeals for the Eighth Circuit. David is and was a great judge who is and was conservative too his core but scrupulously fair. Once upon a time, he also ran Senator Grassley’s Senate campaign.
Kelly became an assistant federal public defender in the Northern District of Iowa, in 1994 and served as the supervising attorney in the Cedar Rapids, Iowa office, from 1999 to 2013. In 2004, Kelly was attacked while jogging in a park in Cedar Rapids, brutally beaten and left barely alive; her assailant was never identified. But it is not too speculative to suggest that she was the target of a former client or his or her mates.
Obama put Judge Kelly on the Court of Appeals in 2013. He also thought seriously of nominating her (with the tacit support of Senator Grassley) when Garland was nominated. The judge has by now served with distinction evidencing a balanced but moderately liberal jurisprudence. She is 54 years of age. I hear she is very well liked by her colleagues.
You know all of this and more. But perhaps your readers don’t.
All the best.
RGK
PS. Love the editing function to your site.
Judge Kelly would be a wonderful choice for the Supreme Court, as was argued at the time President Obama tried his Garland gambit, who was not nearly as sound a choice for the long haul but a brilliant choice to tempt a Republican Senate.
At the root of the sixth amendment right, there is and always has been a money issue. No matter how many former public defenders we have on the bench, “the rights of criminal defendants can never be fully secured” until the money issue is addressed. Either the public has to come around to the notion of taxation to pay for the right to effective counsel, or courts have to find the resolve to order it (or, we can just forget about it and pay lip-service, which has been a mainstream approach to this point). PD offices like the politicized freakshow run by Squawk’s boss-person don’t help garner support from anyone but the most woke (who also tend to be the most broke).
Notably, they don’t spend much time or energy fighting for money of late, but rather of virtue. Maybe this means they expect money to follow because they’re special, or maybe they’ve given up on adequate funding in favor of feeling good about themselves by denying what a shitty job they do to the sad tears of their believers.
Here in Idaho the public defenders that go straight to the bench most often suffer what we call robe derangement syndrome. Some were close friends till the bench made them some of the worst abusers of the Constitution. Not that additional perspectives aren’t helpful and scotus is woefully homogenous, but this is probably about the worst litmus test I’ve heard of. And I’m an 8 year public defender.
This isn’t a new syndrome. So here’s the question: why do PDs, who are the best and coolest lawyers ever, turn into such stupid horrible people, whether on the bench or in private practice, after leaving the PDs office?
For the record, my therapist says I have always suffered from the syndrome, but, having never served as a PD, she thinks it has something to do with my mother. Can you imagine a female therapist who is a disciple of Freud? But I digress.
All the best.
RGK
I think it’s genetic. You get it from your kids.
I don’t know, as I can’t ask them, but my guess would be that PDs tend to be mission driven people, and they see playing umpire as unfulfilling so they want to use the position to “fix” something. They also think they see through whatever the defense is up to and through any defendant’s stories and immediately jump to negative conclusions. I think prosecutors spent a lot of time with police and know how they work and are more likely to see through them and try to hold them accountable. Not all prosecutors mind you, I know many who see their job as a mission to protect the populace, see bad cops and still better than defendants, and will do anything to put whoever is in their sights away. Those guys need to be kept away from the bench at all cost. In my short experience, civil lawyers seem to make the best judges in criminal cases because they seem the most interested in the system functioning properly, not sticking up for some “side.” That’s my theory anyway.
Your views may change substantially with a great deal more experience, especially about civil lawyers making the best crim judges.
Robe derangement, we can handle Jay. It’s disrobe derangement that drives us nuts. Especially if he/she/it/trans/bi/Leno or gaylord is pedophile. That is where we draw the line, if you catch my softball?
It’s for the children.