Thursday, September 3, 2009

Five “Outside the Box” Supreme Court Nominees


I know that in my last post I specifically called for a former public defender for the Supreme Court. But since there is no chance in that happening, I decided to put out five specific names, none of whom (to my knowledge) are former public defenders. I believe that everyone below is qualified, though I admit that they too have an icicle's chance in hell of nomination.


RALPH NADER-Legendary consumer rights lawyer, also –ran

Pros: Would be loads of fun in oral argument, would immediately start national conversation on consumer rights, would provide intellectual counterweight to Scalia and Thomas.

Cons: Abrasive personality; is a wild card in every sense. Filibuster guaranteed.

SPENCER OVERTON- Author of "Stealing Democracy," founder of Demos, Professor at GW Law School.

Pros: Attuned to civil rights, reliable liberal, charming personality.

Cons: No judging experience; could be viewed as ideologue. Filibuster guaranteed.

NANCY GERTNER-Serves on Massachusetts Federal District Court, former defense lawyer

Pros: Known for thoughtful eloquent opinions, high intellectual caliber, reliable liberal, respected by colleagues.

Cons: Outspoken; controversial and headline-grabbing. Filibuster guaranteed.

MARGARET MARSHALL-Chief Justice, Massachusetts Supreme Judicial Court, authored Goodridge same-sex marriage opinion.

Pros: Unsurpassed temperament, would be celebrated by GLBT community, has perspective of someone who grew up in apartheid South Africa, nomination process would show true colors of gay-bashers in US Senate.

Cons: Would create stir over Massachusetts law's generosity to criminal defendants—could make my job harder. Filibuster guaranteed.

JERRY BROWN- California Attorney General, also-ran, Former Governor and Oakland mayor.

Pros: Would become "Justice Moonbeam," high familiarity with state and local perspective on federalism issues, would raise profile of environment issue.

Cons: Not a team player; wants to run against Gov. Schwarzenegger. Filibuster guaranteed.

Wednesday, September 2, 2009

Former Public Defender for Supreme Court Justice

I'm calling on President Obama to appoint a former public defender to the United States Supreme Court. With rumors of Justice Stevens's retirement abound, now is as good a time as ever to make my case.

First, I want to address the naïveté of this proposal. I understand that sadly, we are in a political climate that makes such an appointment basically impossible. Democrats and Republicans alike continue to subscribe to the view that cheap platitudes about being "tough" on crime and drugs will resonate more with voters than courageous leadership on criminal justice reform. Though I tend to think that voters respect courageous moves (even if they disagree with them) more than pandering, conventional political wisdom suggests the opposite. We routinely see progressive politicians shift toward the center on criminal justice matters. President Clinton did it, and now President Obama is doing it. So I hope I've made it absolutely clear at the outset that I understand the real politic of this proposal.

Yet real politic or not, the "tough on crime" dogma is rooted more in Americans' emotional/historical attachment to wild west "hang 'em high" justice, than actual facts regarding the judging tendencies of former public defenders. I have heard of no evidence—and I doubt any exists—that former public defender judges side with defendants more often than former prosecutor judges side with prosecutors. Nobody ever questions whether a former prosecutor will be biased. Nevertheless, Democrats and Republicans seem to shy away from appointing any jurist who could be remotely construed as "soft on crime," no matter how qualified the individual. If I only had a dime for every time Democratic senators Patrick Leahey, Arlen Spector, and Chuck Schumer touted their status as former prosecutors.

At least, however, these Democrats favor meting out justice to corporate misfeasors as well. It is ironic that the most hard-core law and order politicians in the United States Senate—southern Republicans—have no problem appointing those who defend polluters, makers of unsafe products, rip-off loan companies, tobacco manufacturers and even foreign governments. I guess that it is alright to defend those who cause harm to others, so long as the attorney is at a white-shoe law firm. Chief Justice Roberts is the best example—An attorney who worked to defend corporations against individuals, and has yet to side against a corporation as a Supreme Court justice. "How dare you suggest that his former clients reflect his judicial philosophy," bellowed his Republican defenders when some questioned his commitment to individual rights during the confirmation hearings. If only theses politicians would hold a former public defender to the same standard.

The truth is that former public defender judges are just as capable of locking up bad guys, and may even be better equipped to do so than their former prosecutor counterparts. They can smell out a guilty defendant or a frivolous defense argument better than just about anyone. They know every procedural trick in the book because they have tried to use them at one time or another. Unlike prosecutors, they have to actually visit jails and converse with sex offenders, murderers and neo Nazis on a regular basis. They are under no illusions about the fact that there are lots of bad people who do bad things. As for their sympathy for the victims of crimes, public defenders grasp what far too few police and prosecutors understand: Most victims of crime come from the very same segments of society that defendants do. Contact with defendants from poor and minority populations means greater understanding of the world in which victims live.

Does anyone seriously think that President Obama would have opposed the idea of a public defender as a Supreme Court justice back when he was a state senator? Here is a perfect opportunity for him to reassert himself as a principled leader who doesn't always follow the polling and do what's popular…he may even find that the public will reward an act of courage. Nobody thinks that President Obama is Mr. Law and Order, so he shouldn't pretend to be. What better way to show some balls than to appoint a former public defender to the Supreme Court.