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.