May
12

Darrow v. Kagan: Contrasting Candidates

It is a tale of two nominees, one the golden child of doting Upper West Side, Manhattan parents, seemingly destined for great things and expensively reared and educated, the other largely self-made, the product of two blue-collar workers struggling to get by in Detroit. While the child of Manhattan soared through the world's most prestigious educational instutions, Detroit's child struggled to get through middling sorts of institutions. One worked as a law clerk, professor and dean, the other represented folks injured in accidents and accused of crimes.

Question: Which background reflects the lives of ordinary Americans?

The contrast between Gerry Darrow, President Barack Obama's startling dark horse nominee to the Supreme Court, and what observers now call the "tandem nominee," Elena Kagan, is apparent even in the demeanor of the two nominee as they find themselves now in the public eye. On the day after her nomination was announced, Kagan looked gleeful, a beaming, almost child-like grin animating her features: at last, the long wait was over, she had been picked for a job she had wanted since at least high school. The ambition of a lifetime to which she had bended every fiber of her considerable talent was to be fulfilled. Childless, without a spouse, a self-proclaimed workaholic, Kagan seemed at once, finally to relax.

Darrow was nominated at a press conference on the steps of a federal prison. He walked from the press conference into the prison to visit a client. In the days after his nomination, Darrow appeared daily the courtrooms of the small community in which he struggles, as public defender, to keep chaos from overcoming the lives of his clients. His demeanor far from gleeful, he looked almost stunned. "I am not worthy of the honor," he told a judge.

"Putting the contrast in terms of life experiences, Gerry Darrow is clearly the more recognizable," said Senator Patrick Leahy, D-Vt, the chairman of the Senate Judiciary Committee. "But the Senate is not an elective office. This isn't a demographic contest. Elena Kagan could bring superior intellectual fire power to the Court."

The nomination of Darrow was met with protest among the law's elites. Federal law clerks staged a one-day work stoppage. Law schools at Harvard, Yale and Stanford seemed in mourning, as students wandered the halls in shock, all but muttering alound about barbarians storming the gates. Some wondered whether the decision of the United States Supreme Court to close its mamouth front doors to the public was a symbolic protest against the appointment of a trial lawyer to the high court.

This week, President Obama nominated Elena Kaga, a former dean of the Harvard law school, as a so-called "tandem candidate," a move unprecedented in the nation's history. Was the president signaling a lack of confidence in Darrow?

If he was, Senators didn't appear to notice.

"Kagan is no doubt brilliant," said Republics Senator Jeff Sessions of Alabama. "But she's got no apparent track record. At least we know who Darrow is. Kagan looks like the geriatric version of a summer staffer, all elbows and ambition. But simply being here isn't enough. What does she believe about the law's role in our life?"

Efforts to humanize Kagan were at once apparent. The New York Times reported that she can be a scatterbrain, and has from time to time left her car running overnight as she walked away from it deep, apparently, in thought. The paper even went so far as to find it noteworthy that she smoked cigarettes as a teenager. A picture was published of her struggling to swing a baseball in a softball game at the University of Chicago.

"I thought I was reading the Onion," a satirical Internet publication, "as I read the Times piece," said Sandra Whaling, dean of the Thomas Cooley Law School, from which Darrow graduated. "She smoked? Oh, my, and she loves Jane Austen, too. I mean, really. Is a clinical profile of someone with social Asperger's syndrome?"

Darrow himself seemed intimidated. "She's pretty impressive," he said. "You almost never see someone like that in court. Folks like her get to spin the webs the rest of us try to untangle when those webs snare a client. But I got to hand it to her, wow, she's got a great looking resume."

Kagan supporters hailed her nomination as a sign of diversity. "She would be the only nominee never to have served as a judge. She brings diversity to a court comprised wholly of former jurists," the Harvard Daily News editorialized. But this diversity claim appeared lost on Darrow supporters: "Diversity? Another Ivy League star who clerked on the Supreme Court, got lost for a year or two in a megafirm and then went on to academia? When I think of diversity on the court, I think of appointing a lawyer who has actually tried a case in a courtroom, someone who has actually represented a person in a conflict. Is anyone up there in that league?" asked Scott's Minefield, a prominent legal blog.

As the Senate Judiciary Committee prepares for nomination hearings, legal interest groups suddenly found themselves reading trial transcripts to get a sense of Gerry Darrow's demeanor and intellectual acumen. "He can talk the ears off an elephant," said one staffer. "It's refreshing to see the law in action."

Legal interest groups, however, returned to familiar terrain. "I need to know whether Ms. kagan is prepared to honor the intentions of the Founders or whether she's the sort of activist who believes in a living constitution," the director of legal research for the Federalist Society said. "The nomination process is really a test of constitutionali infidelity."

When asked about the Federalist Society's concerns in a break during an arson trial in New Britain, Darrow paused for moment, smiled, and then said: "That's just stupid. I can't imagine a more activist approach to reading the document than restorting to a Quija board to figure out what dead people think. Who do these people think they are kidding?"

Kagan could not be reached for comment. She was rumored, however, to be enjoying a cigar, a rare indulgence, the Times reported, as she read briefing papers on the various Senators with whom she will be meeting in days to come. Even in the white glare of new-found fame, the contrast between Darrow and Kagan was obvious, and glaring.

For more complete coverage of the Darrow nomination click here.
Related topics: Who is Gerry Darrow?
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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.
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