Gerry Darrow has never taught at a law school, authored a law review article or given an address to bar groups about his views on the law. In his 17 years as a practitioner, he's been too busy in courts of law representing folks injured in car accidents or accused of crimes to take a broader view of the law. As the Senate considers his suitability for a seat on the Supreme Court, critics wonder just what the man believes about the role of courts in our society.
"I cannot help but wonder whether Mr. Darrow has a soft spot in his heart for deviants and criminals," said Senator Jeff Sessions, R-Ala., the ranking Republican on the Senate Judiciary Committee. "I mean, did he ever serve the government as a lawyer? Why only those accused of crime?"
Session's office released this week briefs Darrow wrote in a Connecticut case involving the rape of a child. Darrow asked the court to prohibit the child from testifying against her accused. "Does it make sense in this state to say that a nine-year-old child cannot enter into a binding contract but that her word is sufficient to send a man to prison for life?," he wrote.
In another case, Darrow pleaded with the court to permit a man convicted of a brutal carjacking and rape to serve a sentence short enough to permit him hope of leaving prison while alive. "Judge, my client is nineteen years old. He has an entire life ahead of him. Is it too much to ask that he have the hope of someday, when he is old and bent by time, walking among us and seeing the Sun set on without looking through prison bars?" The youth was sentenced to 85 years in prison, a result Darrow told reporters was "shocking."
"These sentiments, these arguments, are shocking," Sessions said.
Others see it differently.
"No one raised questions when Sonya Sotomayor was nominated that she was unfit because she had served as a trial prosecutor earlier in her career. Wouldn't it hold that a constitution seeking to place limits of governmental power should render as unfit to serve a person who sought to assert that power?," said Robert Fogelbeak, former president of the National Association of Criminal Defense Lawyers. "Sessions' assertions are absurd."
The parsing of a judicial nominee's statements about the law and courts before becoming a judge are often controversial. Last week, journalists scoured over the public and not-so-public record of tandem nominee Elena Kagan to try to learn her views. But the record was opaque: she appeared right of center on freedom of speech, cautious on abortion, and seemingly without public views on the range of issues that typically occur in a court of law. In 25-years of legal career she appears never to have stood beside a client in a court of law.
"At least Darrow has a record of courtroom accomplishment," said Julius Nugent, a lawyer familiar with Darrow. "He has served as an advocate for his client. That's the role of a practitioner."
Some question whether a non-practicing lawyer can become an effective jurist.
"A judge without courtroom experience is like a sprinter confined to a wheelchair," said Scott Minefield, an influential blogger on legal affairs. "Sure, you can describe the race and the attributes of who should win: The fastest man out of the blocks and capable of sustaining his lead wins. But that's mere pap."
Kagan would not comment about her qualifications, and spent the week locked away with Senators who will vote on her nomination. Reports indicate she is charming, engaging, a good conversationalist and gracious.
Darrow, by contrast, spent his week in court, trying the case of a man accused of a residential arson. To the dismay of his White House handlers, Darrow speaks freely with the press.
"Mr. Sessions seems like an all right kind of guy," Darrow said. "I am sure his heart is in the right place. But reading my briefs to see what I believe is sort of a waste of time. I am an advocate for my clients. My role is not to assert my views of the law into a case so as to advance some pet or idiosyncratic version of legal theory," Darrow chuckled. "Here's an aphorism for you: Practice conceived isn't theory relieved. The law is not theory. There are no philosophers pleading a client's case."
The Senate is expected soon to hold simulatneous hearings on the nominations of Darrow and Kagan. President Obama's nomination of Darrow sparked revolt and controversy among legal scholars and court personnel, prompting Obama to nominate a more mainstream candidate to be evaluated alongside Darrow.
"Let's let the people decide what sort of the Court they want," the president said. "I heard voters ask for change in November. I think Darrow represents change."