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October 11, 2016

"Could Atticus Finch get elected?"

ToKillMockngbrd_150PyxurzThe question in the title of this post is the headline of this notable new commentary authored by Kevin Burke, who is a state trial judge in Minnesota and past president of the American Judges Association. Here are excerpts:

Atticus Finch, the fictional lawyer in “To Kill a Mockingbird,” passionately believed in justice. He didn't like criminal law, yet he accepted the appointment to represent Tom Robinson, an African-American man charged with raping a young white girl. The story, set in Maycomb County, Alabama, in the early 1930s, portrays a lawyer who felt that the justice system should be colorblind. Had Atticus Finch run for office after the trial, could he have been elected?

A web video from the Republican National Committee darkly portrays Democratic vice presidential nominee Sen. Tim Kaine as having “protected the worst kinds of people” on death row as a defense attorney.  The video features Lem Tuggle, whom Kaine defended on rape and murder charges. Tuggle was eventually executed. The video also focuses on Richard Lee Whitley, who was executed despite what the Richmond Times-Dispatch described as “about 1,000 hours of largely free legal work” on Kaine's part.  We admire Atticus Finch, so why is it that Kaine’s defense of death penalty defendants is treated differently?

Representing unpopular clients has a long tradition in the American legal system.  John Adams represented British soldiers accused of murder in the 1770 Boston Massacre. Before agreeing to represent the British soldiers (who were that era’s terrorists), Adams worried about his reputation.  Yet, he said of his experience, “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right.”  John Adams was elected president of the United States.  In an age of 24-hour cable, Willie Horton ads, and internet-driven misinformation, could Adams be elected president today?

Paul Clement was a superstar appellate lawyer in the Bush administration.  After resigning as solicitor general of the United States, he joined King & Spalding as a partner. Clement agreed to represent the Republican majority in the U.S. House of Representatives to defend the Defense of Marriage Act, the law that federally defined marriage as between one man and one woman.  Shortly thereafter, King & Spalding withdrew from the case, and Clement promptly resigned from the firm to continue his representation. He said, "Representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters." Clement’s decision to leave his firm had a notable defender: Attorney General Eric Holder.  Holder said, “In ... representing Congress in connection with DOMA, I think he is doing that which lawyers do when we’re at our best ... [the] criticism, I think, was very misplaced.”

“Mr. Clement’s statement misses the point entirely,” Richard Socarides, president of Equality Matters, wrote in The New York Times. “While it is sometimes appropriate for lawyers to represent unpopular clients when an important principle is at issue, here the only principle he wishes to defend is discrimination and second-class citizenship for gay Americans.”

Paul Clement will likely never run for public office, but there are those who speculate Clement may someday be nominated for the U.S. Supreme Court.  The confirmation process has become quite partisan.  Would it be fair to deny him confirmation because of his representation of a client and defense of a ban on gay marriage?

In 2014, the Senate rejected the nomination of Debo Adegbile to be chief of the Civil Rights Division of the Justice Department. Adegbile's nomination was rejected because as an executive of the NAACP Legal Defense Fund, he worked on a series of briefs made on behalf of Mumia Abu-Jamal, who was convicted of killing a Philadelphia police officer in 1991. Every Republican senator voted against Adegbile and several Democrats joined them.  “I made a conscientious decision [to vote against Adegbile] after talking to the wife of the victim,” Democratic Sen. Joe Manchin told reporters.  After talking with gay victims of discrimination would it be appropriate for a senator to vote against Paul Clement?...

Edward Bennett Williams was among the greatest trial lawyers of the last century. He represented a slew of unpopular clients, including Jimmy Hoffa, organized crime figures Sam Giancana and Frank Costello, as well as Sen. Joe McCarthy. In a speech given to the New York State Bar Association, Williams argued there was an epidemic of “guilt by client,” and warned of the “insidious identification” that would scare off lawyers from standing by the unpopular and degraded. Williams said, “When a doctor takes out Earl Browden's appendix, nobody suggests that the doctor is a Communist [Browden was the head of the American Communist Party]. When a lawyer represents Browden, everybody decides that lawyer must be a Communist, too.”...

Not every lawyer has the skill to represent a person facing the death penalty, nor the skill to argue before the Supreme Court. The video suggests you should not vote for Kaine because he had that skill, but should we embrace the demagoguery of the video used against him? This is not an issue about lawyers’ ethics; it is about what each of us wants from the American system of justice.

John Ferguson was executed after he tricked his way into a woman’s home and bound, blindfolded, and then shot eight people. Six of them died. While under indictment for those crimes, Ferguson murdered two teenagers on their way to church. What kind of lawyer would defend John Ferguson? The lawyer was Chief Justice John Roberts.

October 11, 2016 at 02:05 PM | Permalink


First of all, Dems suggested that Roberts wasn't fit given that he represented corporate interests, so they don't get to whine about Tim Kaine. Second, Adegbile went beyond mere legal representation with Abu-Jamal.

We should start by getting that stuff right.

Posted by: federalist | Oct 11, 2016 2:09:23 PM

Another frightfully short sentence: https://www.washingtonpost.com/news/post-nation/wp/2016/10/11/white-supremacist-who-bragged-about-cross-burning-sentenced-in-brutal-attack-of-black-man/?tid=pm_national_pop_b&utm_term=.f8d8c7e4c6d6

10 years? That's it? Sounds like the state should charge attempted murder.

Posted by: federalist | Oct 11, 2016 2:16:35 PM

Probably so given the mixture of the court appointing him (he wasn't some commie reaching out like in the Scottsboro Cases), the disdain the community had for the victim's father (and probably victim), Atticus Finch's own status in the community (already served in the legislature as you recall) etc. Plus, the "prequel" suggests he still had racist views along with populist ones that would appeal to the electorate at the end of the day.

Posted by: Joe | Oct 11, 2016 2:48:18 PM

Go Set a Watchmen is a sequel, not a prequel.

Anyway, Atticus Finch got his client killed (it wasn't the mere fact that he was charged that resulted in the conviction, it was the fact that he insisted his client tell that he had sex with a white woman in spite of the fact that it wasn't necessary because of his dedication to the truth - a dedication he was convinced to later abandon when his kids were involved). Has nothing to do with anything, but it's often forgotten in this whole debate.

Posted by: Erik M | Oct 11, 2016 3:56:42 PM

"Go Set a Watchmen is a sequel, not a prequel."

Not really. It appears to have came first.

Posted by: Joe | Oct 11, 2016 7:10:52 PM

"his client tell that he had sex with a white woman"

No. Tom Robinson got in trouble when he said he was "sorry for" a white woman, engaged with her on a sympathetic and apparently "equal" sort of level. He didn't actually have sex with her, unless "sex" is being used rather broadly here. It's unclear what sort of defense wouldn't have in some way violated racial norms here. And, he "got killed" because he didn't trust the appeal process, so tried to escape. He wasn't lynched -- and a lynch threat that DID occur was before the trial.

The shot at his inconsistent concern for the truth also requires a bit of backing. Even when Boo Radley killed to protect his kid, Atticus Finch wanted to be upfront about what happened. The sheriff was the one who said that would be harmful to Radley's interests.

Posted by: Joe | Oct 11, 2016 7:18:04 PM

The increasing polarization and partisanship of our political system means that just about anything is fair game when it comes to assigning someone to "a team."

Posted by: Fat Bastard | Oct 11, 2016 10:57:41 PM

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