Mar
17

Criminal Defense Lawyers Need Not Apply -- Again

Merrick Garland, eh?

Throw that fish back. He’s just more of the same. We need a new kind of justice on the Supreme Court. We need someone with experience defending folk accused of a crime.

President Barack Obama surprised no one with his nomination of Garland to fill Antonin Scalia’s seat on the Supreme Court. The 63-year-old jurist has for years been on the president’s short list of potential nominees, and was passed over for the vacancies filled by Sonya Sotomayor and Elena Kagan.

Garland is qualified, mind you. Those close to him say he is brilliant, but, candidly, there are plenty of bright stars in the law’s firmament. The life of the law is not logic, but experience, a famous jurist once said. Garland is more of the same old privileged stew.

Garland’s been to Harvard. He’s clerked at the United States Supreme Court. He was a partner at a mega-firm specializing in corporate litigation. He was a federal prosecutor who went after drug dealers and supervised high-profile terrorism investigations. It’s all good stuff, but he’s a member of the same tedious country club the other justices call home.

We’ve eight penguins all trundling along in unison. Can’t we try something new just once? Can’t we have a people’s lawyer on the high court?

Of course, there is a view, widely shared among lawyers watching the nomination process, that Garland is simply road kill. After all, at 63, Garland has long since passed the sell-by date of a typical Supreme Court nominee. Obama just needed a sacrificial lamb to throw at the Senate, the whispering goes.

Senate Republicans have made crystal clear their intention to make sure that no one the president appoints will be considered in this lame duck year.

Listen to the Senate’s Mitch McConnell: “The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different.” The people should chose, the senator says. He forgets the people already have.

President Obama is a serving the final year of a term to which the American people elected him. Senators are serving terms to which the American people have elected them. Is it really too much to expect the Senate to do its job?

In this gridlocked world of ours, it is. Senator Mumblemouth and his merry band of obstructionists have the power, and, in fact, the right, to refuse to bring any nominee to a vote.

The Constitution gives the president the right to nominate a person to sit on the high court. To the Senate is given the power, and the right, to give advice and consent. Nothing in the Constitution requires the Senate to actually give consent, and only the most arcane sort of reasoning supports the theory that the Senate must act. If the sense of the Senate is to refuse to vote, there’s not much that can be done about that. Witness the separation of powers doctrine in action, folks.

But what would be the harm in senators showing up to do an honest day’s work?

The Senate should hold hearings on this nomination.

It should then reject the nominee.

We need something different. We need a defense lawyer on the Supreme Court, someone who has actually stood next to a person accuof a horrible crime and demanded to the point of public scorn and ridicule that every jot and tittle of the Constitution be honored. The Constitution is put to the test in the well of the criminal courts, not in a classroom and not in a boardroom.

That not one justice on the Supreme Court has ever stood beside a person accused of a crime should be a national scandal. This is a high court, after all, that has expressed comfort with putting to death people who might well be innocent, all in the name of finality of judgments, mind you.

The overwhelming majority of people accused of crimes are represented by public defenders, or court-appointed lawyers. These men and women are true public servants, and the fights they wage on behalf of the accused are often desperate. I think of the words attributed to Jesus in Mark’s Gospel: “They that are whole have no need of the physician, but they that are sick.”

What would be the harm in appointing a former criminal defense lawyer to the Supreme Court?

Of course, expecting a Republican Senate to do that is sort of like expecting Donald Trump to turn up repentant at a prayer breakfast: nothing is quite so satisfying as self-righteous chest-thumping.

Consider the smear campaign launched this week by a group calling itself the Judicial Crisis Network. It recently took aim at Jane Kelly, a federal appellate court judge and former federal public defender who some thought, and I hoped, would be the president’s nominee.

The crackpots at the Crisis Network called an alarm. Kelly is a “liberal extremist” with a “disturbing background.” Why, she was a federal public defender in Iowa for many years. She represented a man accused of possessing child pornography, a man later convicted of first-degree murder and sexual assault of his former lover’s 5-year-old daughter.

Does the Network really believe that because she defended the accused, she approved of her client’s alleged unlawful conduct?

When members of the Network are accused of a crime, whether rightly or wrongly, few, I suspect will go running to court to admit their guilt. Everyone is entitled to a defense. Everyone.

I doubt seriously that the Senate will act in any meaningful way on the Garland nomination. Oh, it might well hold hearings, to satisfy critics who contend it is obliged to at least give the appearance of earning their keep. But gridlock is the new death dance in Washington.

The Garland nomination is almost certainly dead on arrival.

That’s fine with me. I am hoping the next president will break the cookie cutter used to stamp out nominees for the high court. Jane Kelly would be a perfect fit. See to it, President Trump. I dare you.

Related topics: Journal Register Columns
Comments (1)
Posted on March 20, 2016 at 1:40 pm by Andrew Warren
Garland
Norm: Do you know if any of the judges on SCOTUS are graduates of a public law school?
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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