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March 29, 2016

"There hasn’t been a criminal defense lawyer on the Supreme Court in 25 years. That’s a problem."

The title of this post is the headline of this notable new Vox commentary authored by Dara Lind. Here is how the piece starts: 

It's been a quarter-century since a former criminal defense lawyer sat on the Supreme Court.  Since then, crime has fallen by half.  Incarceration has risen, then fallen (slightly) again. Americans are becoming more and more critical of the "tough-on-crime" mindset that defined the end of the 20th century, and more skeptical that police and prosecutors will always use their powers for good — in other words, they're coming in line with how defense lawyers see the world.

But when Barack Obama made his third (and likely final) Supreme Court nomination last week, he nominated Merrick Garland.  Garland is a former prosecutor with a tough-on-crime record. The Court already has two ex-prosecutors.

Appellate defense lawyer Timothy O'Toole points out that the Court has veterans of both sides of civil cases (defendants' and plaintiffs' lawyers) and one side of criminal cases (prosecutors). "But the one group that seems kind of outside that box, particularly on the Supreme Court, are defense lawyers.  And that's a shame."

Defense lawyers and scholars worry this isn't an accident; it's the result of the structure that shapes who can get nominated to the Supreme Court to begin with. Federal judges tend to be people who "ticked all the political checkboxes on their career starting from when they were 15," says Tejas Bhatt, assistant public defender for New Haven, Connecticut. Often one of those boxes is working as a prosecutor.  Even beyond any particular career experience, the system rewards "people who don't take controversial positions, they don't do controversial things, who don't issue controversial opinions, who do seem to hew more toward law and order and enforcement."

There's good reason to be concerned about the jurisprudence of a court that only understands one side of a criminal case from experience — and since the high-water mark of the 1960s, defense lawyers have seen the Supreme Court put serious restrictions on the right against self-incrimination, the right against unreasonable search, and even the right to a lawyer.

But to many of them, this isn't just a problem with jurisprudence.  It's a problem with the Supreme Court in a democracy — and in an increasingly diverse America.  They believe the politics of Supreme Court confirmations has limited all but a very narrow, very privileged slice of America to have a shot at a seat on the highest court in the land.  And one of the groups who they fear are locked out is the people whose job it is to stand up for the rights of the marginalized — and those who are on the wrong side of well-intentioned laws.

March 29, 2016 at 08:30 AM | Permalink


I continue to think a defense minded pick was a good idea that the choices put out there this time would not have worked well given the current situation. Garland was a good pick, the two leading alternatives not defense minded choices, the third even deemed problematic by someone who wanted a defense minded pick.

Last time was a good choice too since it wasn't the standard appeals judge, often white male. Kagan turned out to be a good pick and her background probably supplies a different perceptive.

Ditto the Latina from the Bronx with long experience. This includes being a member of the State of New York Mortgage Agency, part of one of the largest urban rebuilding efforts in American history, the agency helped low-income people get home mortgages and to provide insurance coverage for housing and AIDS hospices. She was also on New York City Campaign Finance Board and board of directors of the Puerto Rican Legal Defense and Education Fund.

But, a defense minded pick -- one person in the past suggested Jeffrey Fisher -- is fine. Perhaps, if Garland fails, able to ride it out in part since he was picked just for that reason, Clinton can pick him or Jane Kelly. The other woman can be raised to appellate level and in a few years be a prime choice for the next slot.

Posted by: Joe | Mar 29, 2016 9:44:10 AM

"Ditto the Latina from the Bronx with long experience."--and yet, with all that experience, she couldn't figure out the difference between causation and attributability when evaluating a Double Jeopardy case. Nor could she figure out the operative effect Ginsburg's opinion would have had in the Ricci case. (It wouldn't, as Sotomayor asserted in her prepared Senate remarks, affirmed the Second Circuit.)

Posted by: federalist | Mar 29, 2016 12:39:51 PM

While different career paths can form part of a judge's perspective, it is not necessarily outcome determinative. While Justice Sotomayor did work as a prosecutor, her opinions are not pro-prosecution. In my state, there are several former public defenders serving as judges who are just as tough on defendants as any former prosecutor.

Posted by: TMM | Mar 29, 2016 12:40:45 PM

Hey. Earl Warren was a DA. We are just talking odds here. It's a thing.

Posted by: Joe | Mar 29, 2016 12:54:15 PM


"In my state, there are several former public defenders serving as judges who are just as tough on defendants as any former prosecutor."

This misframes the concern, or at least it is not what concerns me. For me the issue is one of legitimacy. We live in a diverse society and while I realize that with only nine people there can never be a judge for every single interest group, not having anyone with that experience ever in their career makes it seem that the court just doesn't care. Realistically, these days more cases that reach SCOTUS involve criminal law than they do gender or racial concerns. So at least for me it's not an issue of whether a PD is "easier" or "harsher" than a DA in outcomes. It is whether or not someone with that experience has a visible place on the court.

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