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.
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