Building on his work over more than a decade, Radley Balko asked 20 Questions of the candidates seeking the 2020 Democratic nomination for president. Put aside whatever quibbles you have about the framing of the questions, as he’s tried to be as neutral as possible in how they’re framed in order to ask a question that would get a meaningful response. And he’s done a fine job of it.
But his 19th question raises an issue that was a hot topic here a decade ago, as I took the position that Sonia Sotomayor was an excellent choice for the Supreme Court. While she checked the boxes for female and Hispanic, which was a big issue at the time, neither of those factors commended her nomination. There was no doubt an Hispanic woman could be a justice, but being an Hispanic woman wasn’t enough. Not by a mile. My support was based on her legal experience.
The next Supreme Court Justice should know what it’s like to listen to the ignorance, fear and craziness of litigant trying to comprehend why the law can’t seem to cure their ills. The next justice should know how it feels to have a judge try to humiliate them in a courtroom because they wear the robe and get to make the rules. The next justice should appreciate that the 5+ years between the start and end of child custody proceedings destroys lives and ruins children. The next justice should know how it feels to be innocent and in prison because some legal fiction was more important than some person’s life.
And for the record, this experience doesn’t come from a few years working as a government lawyer, where none of this experience is ever gained.
Sotomayor had prosecutorial experience before she took the bench, but she was more an appellate judge than lawyer, and she was never really a trench lawyer. Radley asks whether the presidential hopefuls would nominate someone with criminal defense experience.
19. There hasn’t been a justice on the Supreme Court with criminal defense experience since Thurgood Marshall retired. Only a few justices since Marshall have had any criminal law experience at all. Do you think this is a problem? Would you consider appointing someone to the court with a significant criminal defense background?
Marshall wasn’t a criminal defense lawyer, a detail that seems to be missed by many, and his experience was as a civil rights lawyer who began the NAACP Legal Defense Fund. This may seem close enough to non-lawyers, but to criminal defense lawyers, this is a world apart. But Radley’s point, that there is no one on SCOTUS who possesses the experience gained from criminal defense, remains. As the Supremes decide monumental issues of criminal law, would it not best serve a nation for someone to possess “significant” subject matter experience?
NYU crim law prof and director of the Center on the Administration of Criminal Law, Rachel Barkow, backed this up, but took it a bit further.
Thankful
@radleybalko is highlighting the need to get Supreme Ct justices w/criminal defense backgrounds. We also need more judges w/ public defense & civil liberties experience for the rest of the federal bench.
A decade ago, the point was made in response to my argument in favor of Sotomayor that what we needed wasn’t so much a criminal defense lawyer, but a trench lawyer, someone who wasn’t an academic, an appellate judge, a product of one of the two elite law schools. Someone who tried a case, who had to work for a living, who had the experience of doing what the Supreme Court wrote about from its perch 35,000 feet above the well.
Is it enough to ask whether a presidential nominee would appoint someone with significant criminal defense experience? Sure, there are criminal defense lawyers I would love to see on the Supreme Court, but there are also more than a few who scare the daylights out of me, whether because they will turn out like Justice Harold “Prince of Darkness” Rothwax, a former public defender turned high executioner when he got his hands on the gavel, or whether they’re captive to an ideology that would reinvent the Constitution without regard to principle or reason.
Let’s face it, there are some exceptionally dangerous voices in criminal defense, and particularly in public defense, these days. How often do woke public defenders rationalize why winning and losing should be nothing more than a by-product of race or gender, dead bodies be damned?
Some will find the answer in a job title, as if any criminal defense lawyer will do. Or more to the point, any public defender, as the louder and more simplistic voices seem to prefer the virtue of being forced to represent the worst criminals rather than do so for money or the Constitution. Is it that simple?
Over the past decade, many of my brethren in the criminal defense bar have seized upon the simplistic ideology of social justice, identity politics. They would reinterpret the First Amendment to preclude “hate speech.” They adopt the shallow view that the only problem with criminal law is systemic racism, and that it can be solved by not arresting black and brown people or eliminating crimes that disproportionately impact them. as if the qualification for societally acceptable theft is the color of one’s skin.
Even the trench lawyer distinction, that the less-than-elite lawyer with real life experience in the trenches is the justice the Supreme Court needs, doesn’t quite answer the question anymore. These same insipid ideologues would fit the trench lawyer bill much as a person with significant criminal defense experience, but would mindlessly divorce their positions from law and Constitution to serve their cause.
So is Radley’s question still viable? Is Rachel heading in the right direction? It’s not good enough to fit the justice to the job description of criminal defense lawyer, and especially public defender. Not even a trench lawyer. Sure, all these things are part of the package, but they fall increasingly short of what the Supreme Court needs if we’re to have decisions that work in the trenches because they aren’t elitist fantasies of the law, but at the same time aren’t simplistic solutions that will destroy the fabric of the law and constitutional rights for decades, if not centuries, to come.
A decade ago, the answer was easier than it is today. Experience alone would have answered many of the questions. Today, the same experience makes potential justices suspect of being unprincipled ideologues, the other side of the Justice Sam Alito coin. So asking whether the candidates would consider appointing a person with criminal defense experience is a fine, but inadequate, question. We need that experience, but we need someone who would apply it while maintaining fidelity to rights embodied in the Constitution. All of them. For everyone.
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SHG,
Jane Louise Kelly is a United States Circuit Judge on the United States Court of Appeals for the Eighth 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.She studied pediatrics for one year in New Zealand under a Fulbright Scholarship in between Duke and Harvard.
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 in Sioux Falls, South Dakota. She then clerked for David R. Hansen, a judge of the United States Court of Appeals for the Eighth Circuit. During the 1993–94 academic year, Kelly taught as a visiting instructor at the University of Illinois College of Law.
Kelly became an assistant federal public defender in the Northern District of Iowa, in 1994. She 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 conscious; her assailant was never identified.
She is moderate to liberal on criminal justice issues. She is will liked and respect by her colleagues and the bar.
If you want a trench lawyer who has done criminal defense work for a long time, who is smart and well educated and who understands real life, then she would be a wonderful pick
All the best.
RGK
You’re brought up Judge Kelly before, and she brings a great many good things to the table. But then, Harvard, law clerk, a circuit judge, a federal defender (meaning she’s never wallowed in state court where the hallways aren’t marble and blood on the floor). She did five years in the trenches, albeit federal, but that’s a blink to those who did 10, 20 or more, barely enough time to get one’s feet wet.
Is there breadth of legal experience? Has she ever had to get a client to pay her, or has she enjoyed a career getting a government paycheck every two weeks? While she certainly sounds far better than most, is it enough? Does she really understand real life, or just her life? Can anyone whose never gone without a govt paycheck understand the trenches?
Per Wikipedia, she spent 5 years as an AFPD, then 14 years as supervisor of the Cedar Rapids FDO. Are you not counting those 14 years as “time in the trenches?”
NE
No.
We keep doing this–we keep trying to fit potential justices into camps. Are they conservative or progressive in general? Are they conservative or progressive in legal philosophy? Democrat or Republican? Civil or criminal; state or federal? It’s a shell game, one which feeds the lowest common denominator of what the public sees as worthy. We know better because we’ve been there.
I think you look too narrowly. How about this: did the potential justice work as a judge in trail courts? Sure, CDLs have been missing. So have a few dozen other specialties. As you recognize, getting down to individuals and personalities is scary, especially if it’s just to check a box. Shouldn’t minimum competence be working as a trial judge? At least there is first-hand knowledge as to real-world implications of broad-stroke decisions.
Then again, the questions could be posed to the potential clerks to determine their bent.
One reason the CDL function is different is that crim law itself is very different from all other litigation, separate rules, problems, clients and consequences. The Supremes decide a lot of crim law cases, more than any other niche, so it would seem to make sense for competence in crim law to stand apart of other specialities. Also, because crim law decisions are far more consequential, both to individuals and society.
As for trial judges, CDLs don’t usually get the nod for even lower court benches, because we’re ugly, nasty brutes who hang around with unsavory charaters. Prosecutors go straight from the office to the bench all the time. CDLs, not so much.
Small steps.
I’d be happy if the next justice came out of a law school that wasn’t Yale or Harvard.
Maybe someone from TX, OK, or AZ.
Even, dare I say it, Nebraska?
That would be a small step indeed, but at least it would be in the right direction.
I went to law school in Manhattan. Not a good law school, but it was the one I could afford under the circumstances. I never applied to law school in Nebraska (or a great many other states, for that matter), so I can’t say whether they would have given me a scholarship as well, but as I learned during my first trial, neither the judge nor jury gave a damn where I went to law school.
If you got a good result for your client, I’m guessing they didn’t care either.
No client has ever asked or cared. Ever.
I want my justices awake, not woke, and uncaring about feelz while very carting about justice and the rule of law along with proper procedures that enable those.
I want my justices to be able to identify when identity is a smoke screen, and clear the air before accepting premises that don’t apply to all people, as opposed to just ‘XX’ people.
I want my justices to not be of an ideology, but able to recognize ideological positions as the lipstick on the pigs that tries to hide that they are pork.
I want my justices to be able to read, not read into. I don’t want them to reinterpret what is written or said to fit some predetermined mold, I want them to recognize what is right and what is wrong and to have the general public foremost in mind.
The problem isn’t just who the candidates appoint, it is that the partisan Senate who will do everything they can to classify, poke, prod, bend, staple, and mutilate any candidate that does not fit their vision of those four things above. And it does not appear to matter whether the R’s or the D’s have the weight. They are so far from ‘advise and consent’ and into ‘shaping the future’ that they have no ability left to ‘advise’ that the candidate should have CDL experience, or if not CDL, some real world dealings (as you say, in the trenches) with the interpretations of the law as presented by our current and past pasted together ‘shape shifting entity’ we call a court. Bringing some of that frustration to the court would be refreshing, even if we wind up with some 8-1 decisions. I bet those dissents will be awesome.
Not that I would ever be nominated, but if I was, my confirmation hearing would be spectacular.
Huh. I always figured you for the “If nominated I will not run, if elected I will not serve” sort.
In vetting candidates for nomination, the considerations seem to be mostly political. I doubt the field of criminal law will ever get much thought, let alone as having any bearing on a nominee’s qualifications.