A Personal Note To Elena Kagan
You did it. You set your sights on one of the nation's top jobs and spent a lifetime pursuing it. You spared no effort to accomplish your goal. You bent your will steadfastly and brilliantly to the task. Your resume glitters. You are a star of the bar, and now a justice on the United States Supreme Court. Congratulations, Madame Justice. As you sit in your new chambers today you should feel justifiable pride in all the you have accomplished and you should look forward to the future. No one, least of all me, can take it away from you. You are a brilliant woman and now, finally, a jurist.
But you have still never stood next to a man or woman in the well of a court who risked everything in a confrontation with the government on the result of a verdict. Sadly, not one of your colleagues has ever done that. You join a club of jurists who determine what the law is and is not but yet lacks any critical perspective based on experience of the law's power to shatter the lives of little people. I hope you can understand, Madame Justice, why some of us view your ascension to the bench as simply more of the same old brilliant gruel.
Our paths have never crossed, and there is a good chance they never will. I did not attend an Ivy League law school; I am not a law professor; I have never worked for the government or a big firm. I graduated from a second tier law school, the University of Connecticut, and have spent the overwhelming majority of my career representing folks accused of crimes or suing state actors under federal civil rights statutes. I lack the diplomatic and social skills to garner the necessary support to become a judge. Most days, it is simply a struggle to pay my employees and meet my firm's expenses. My clients typically have little or nothing with which to meet the challenges of a prosecution.
By the time a case of the sort I handle reaches you, the client is long forgotten. If there was an error at trial, the record speaks for itself. The man whose life depends on your ruling is someone you never see. It worries me that you have never once in your career sat with a client facing indictment and listened to him plead with you to make prosecutors understand that their perspective on the facts is wrong. It worries me that the errors you will dismiss as harmless aren't of the sort you have ever even seen committed in a courtroom. A jury is for you merely the stuff of legend: You've never asked a jury for anything. You think jury and you see a room of people presumed to be reasonable and presumed to follow the law. Madame Justice, there are no reasonable people; there are merely people with reasons. But how would you know that?
Years ago, I argued many cases before a colleague of yours, Sonya Sotomayor, when she sat on the United States Court of Appeals for the Second Circuit. I found her always to be well prepared and possessed of a keen and penetrating intellect. She was one of the few judges on that panel who seemed actually to enjoy the intellectual give and take of the law. But time was always short at argument. She had a tendency to ask a hypothetical question and then press me to move on when I tried to answer it. One day I stopped her when she did that. "Judge Sotomayor," I said, "you did that last time I was here. I'd love to engage you in a philosophical debate about these issues. When are you going to call to invite me to dinner for us to hash some of these issues out?"
Imagine my surprise a year or so later when Judge Sotomayor called. This was before she was nominated to the Supreme Court. I will count as a high point of my career a dinner I had with her and former Solicitor General Charles Fried in Manhattan. Yes, I was overmatched intellectually, and lacked the sense to listen more: but for a moment, I felt that the law was the common possession of us all, and that three lawyers of differing perspectives and temperaments could share views and learn a little something. I give Justice Sotomayor credit for not forgetting that the law is not all glitter and polish: That she reached into the ranks of the bar to listen and to exchange views moved me. She has not forgotten where she came from, and although she worked as a prosecutor, and not a criminal defense lawyer, she never forgot the sights and sounds of a trial court. Get to know Justice Sotomayor, Madame Justice. Whether Wise Latina or not, she has plenty to teach. And go ahead and tell her Norm sent you.
I wonder why no former public defender sits on the Supreme Court. Why no trial lawyer? Why is every justice a variation on the same theme: Ivy League, former federal law clerk, former judge or dean? Are people's lawyers not good enough for the high court? What message does that send the very people whose lives are often defined by the decisions the Court makes?
Cherish your new role, Madame Justice, but please don't get too comfortable. Try to learn about trial, about the rights at issue in a courtroom. Never again will you look for work or need to aspire to anything other than excellence and the pursuit of justice. Go ahead and unpack your boxes, settle into the palatial chambers bought and paid for by the people. But try, please try, to remember that the decisions you make are about real people in crisis.
How long, President Obama, how long until a people's lawyer is nominated to the Supreme Court?